☒ |
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
☐ |
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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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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Title of each class
|
Trading
Symbol(s)
|
Name of each exchange
on which registered
|
||
Common Stock, par value $0.01 per share
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WAT
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New York Stock Exchange, Inc.
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Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
Emerging growth company | ☐ |
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Page
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PART I
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FINANCIAL INFORMATION
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Item 1.
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Financial Statements
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3
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4
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5
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6
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7
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8
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Item 2.
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27
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Item 3.
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37
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Item 4.
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37
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PART II
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OTHER INFORMATION
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|||
Item 1.
|
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38
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Item 1A.
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38
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Item 2.
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38
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Item 6.
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39
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40
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April 3, 2021
|
December 31, 2020
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|||||||
(In thousands, except per share data)
|
||||||||
ASSETS
|
||||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
$ | 683,783 | $ | 436,695 | ||||
Investments
|
125,986 | 6,451 | ||||||
Accounts receivable, net
|
550,677 | 573,316 | ||||||
Inventories
|
327,967 | 304,281 | ||||||
Other current assets
|
79,510 | 80,290 | ||||||
|
|
|
|
|||||
Total current assets
|
1,767,923 | 1,401,033 | ||||||
Property, plant and equipment, net
|
513,719 | 494,003 | ||||||
Intangible assets, net
|
240,853 | 258,645 | ||||||
Goodwill
|
438,139 | 444,362 | ||||||
Operating lease assets
|
88,283 | 93,252 | ||||||
Other assets
|
162,646 | 148,625 | ||||||
|
|
|
|
|||||
Total assets
|
$ | 3,211,563 | $ | 2,839,920 | ||||
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|
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|
|||||
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
||||||||
Current liabilities:
|
||||||||
Notes payable and debt
|
$ | 100,000 | $ | 150,000 | ||||
Accounts payable
|
81,511 | 72,212 | ||||||
Accrued employee compensation
|
35,104 | 72,166 | ||||||
Deferred revenue and customer advances
|
280,848 | 198,240 | ||||||
Current operating lease liabilities
|
26,908 | 27,764 | ||||||
Accrued income taxes
|
82,642 | 76,558 | ||||||
Accrued warranty
|
10,705 | 10,950 | ||||||
Other current liabilities
|
167,331 | 197,093 | ||||||
|
|
|
|
|||||
Total current liabilities
|
785,049 | 804,983 | ||||||
Long-term liabilities:
|
||||||||
Long-term debt
|
1,603,090 | 1,206,515 | ||||||
Long-term portion of retirement benefits
|
72,756 | 72,620 | ||||||
Long-term income tax liabilities
|
357,824 | 357,493 | ||||||
Long-term operating lease liabilities
|
61,503 | 68,197 | ||||||
Other long-term liabilities
|
100,379 | 97,968 | ||||||
|
|
|
|
|||||
Total long-term liabilities
|
2,195,552 | 1,802,793 | ||||||
|
|
|
|
|||||
Total liabilities
|
2,980,601 | 2,607,776 | ||||||
Commitments and contingencies (Notes
6
,
7
and 1
1
)
|
||||||||
Stockholders’ equity:
|
||||||||
Preferred stock, par value $0.01 per share, 5,000 shares authorized, none issued at April 3, 2021 and December 31, 2020
|
— | — | ||||||
Common stock, par value $0.01 per share, 400,000 shares authorized, 161,859 and 161,666 shares issued, 61,847 and 62,309 shares outstanding at April 3, 2021 and December 31, 2020, respectively
|
1,619 | 1,617 | ||||||
Additional
paid-in
capital
|
2,054,076 | 2,029,465 | ||||||
Retained earnings
|
7,256,116 | 7,107,989 | ||||||
Treasury stock, at cost, 100,012 and 99,357 shares at April 3, 2021 and December 31, 2020, respectively
|
(8,969,643 | ) | (8,788,984 | ) | ||||
Accumulated other comprehensive loss
|
(111,206 | ) | (117,943 | ) | ||||
|
|
|
|
|||||
Total stockholders’ equity
|
230,962 | 232,144 | ||||||
|
|
|
|
|||||
Total liabilities and stockholders’ equity
|
$ | 3,211,563 | $ | 2,839,920 | ||||
|
|
|
|
Three Months Ended
|
||||||||
April 3, 2021
|
March 28, 2020
|
|||||||
(In thousands, except per share data)
|
||||||||
Revenues:
|
||||||||
Product sales
|
$ | 382,022 | $ | 274,183 | ||||
Service sales
|
226,523
|
190,756 | ||||||
|
|
|
|
|||||
Total net sales
|
608,545 | 464,939 | ||||||
Costs and operating expenses:
|
||||||||
Cost of product sales
|
158,876 | 119,839 | ||||||
Cost of service sales
|
95,271
|
90,805 | ||||||
Selling and administrative expenses
|
143,196 | 147,735 | ||||||
Research and development expenses
|
38,092 | 34,989 | ||||||
Purchased intangibles amortization
|
1,840 | 2,625 | ||||||
Litigation provision
|
—
|
666 | ||||||
|
|
|
|
|||||
Total costs and operating expenses
|
437,275 | 396,659 | ||||||
|
|
|
|
|||||
Operating income
|
171,270 | 68,280 | ||||||
Other income (expense
), net
|
9,359 | (374 | ) | |||||
Interest expense
|
(10,946 | ) | (14,079 | ) | ||||
Interest income
|
4,101 | 4,036 | ||||||
|
|
|
|
|||||
Income before income taxes
|
173,784 | 57,863 | ||||||
Provision for income taxes
|
25,657 | 4,301 | ||||||
|
|
|
|
|||||
Net income
|
$ | 148,127 | $ | 53,562 | ||||
|
|
|
|
|||||
Net income per basic common share
|
$ | 2.38 | $ | 0.86 | ||||
Weighted-average number of basic common shares
|
62,260 | 62,232 | ||||||
Net income per diluted common share
|
$ | 2.37 | $ | 0.86 | ||||
Weighted-average number of diluted common shares and equivalents
|
62,632 | 62,626 |
Three Months Ended
|
||||||||
April 3, 2021
|
March 28, 2020
|
|||||||
(In thousands)
|
||||||||
Net income
|
$ | 148,127 | $ | 53,562 | ||||
Other comprehensive income (loss):
|
||||||||
Foreign currency translation
|
5,825 | (19,344 | ) | |||||
Unrealized losses on investments before income taxes
|
(10 | ) | — | |||||
|
|
|
|
|||||
Unrealized losses on investments, net of tax
|
(10 | ) | — | |||||
Retirement liability adjustment before reclassifications
|
1,054 | 296 | ||||||
Amounts reclassified to other income
|
216 | 340 | ||||||
|
|
|
|
|||||
Retirement liability adjustment before income taxes
|
1,270 | 636 | ||||||
Income tax expense
|
(348 |
)
|
(238 | ) | ||||
|
|
|
|
|||||
Retirement liability adjustment, net of tax
|
922 | 398 | ||||||
Other comprehensive income (loss)
|
6,737 | (18,946 | ) | |||||
Comprehensive income
|
$ | 154,864 | $ | 34,616 | ||||
|
|
|
|
Three Months Ended
|
||||||||
April 3, 2021
|
March 28, 2020
|
|||||||
(In thousands)
|
||||||||
Cash flows from operating activities:
|
||||||||
Net income
|
$ | 148,127 | $ | 53,562 | ||||
Adjustments to reconcile net income to net cash provided by operating activities:
|
||||||||
Stock-based compensation
|
8,305 | 9,196 | ||||||
Deferred income taxes
|
2,787 | (2,525 | ) | |||||
Depreciation
|
16,343 | 15,708 | ||||||
Amortization of intangibles
|
15,013 | 13,480 | ||||||
Change in operating assets and liabilities:
|
||||||||
Decrease in accounts receivable
|
7,945 | 54,026 | ||||||
Increase in inventories
|
(30,544 | ) | (29,399 | ) | ||||
Increase in other current assets
|
(3,080 | ) | (5,036 | ) | ||||
(Increase) decrease in other assets
|
(4,219 | ) | 2,745 | |||||
Decrease in accounts payable and other current liabilities
|
(29,758 | ) | (15,825 | ) | ||||
Increase in deferred revenue and customer advances
|
89,048 | 46,465 | ||||||
(Decrease) increase in other liabilities
|
(1,563 | ) | 9,238 | |||||
|
|
|
|
|||||
Net cash provided by operating activities
|
218,404 | 151,635 | ||||||
Cash flows from investing activities:
|
||||||||
Additions to property, plant, equipment and software capitalization
|
(39,503 | ) | (51,130 | ) | ||||
Business acquisitions, net of cash acquired
|
— | (76,664 | ) | |||||
Purchases of investments
|
(122,640 | ) | (3,520 | ) | ||||
Maturities and sales of investments
|
3,139 | 1,139 | ||||||
|
|
|
|
|||||
Net cash used in investing activities
|
(159,004 | ) | (130,175 | ) | ||||
Cash flows from financing activities:
|
||||||||
Proceeds from debt issuances
|
500,000 | 315,000 | ||||||
Payments on debt
|
(150,000 | ) | (100,366 | ) | ||||
Payments of debt issuance costs
|
(3,637 | ) | — | |||||
Proceeds from stock plans
|
16,295 | 11,743 | ||||||
Purchases of treasury shares
|
(173,305 | ) | (196,226 | ) | ||||
(Payments for) proceeds from derivative contracts
|
(578 | ) | 2,767 | |||||
|
|
|
|
|||||
Net cash provided by financing activities
|
188,775 | 32,918 | ||||||
Effect of exchange rate changes on cash and cash equivalents
|
(1,087 | ) | (32 | ) | ||||
|
|
|
|
|||||
Increase in cash and cash equivalents
|
247,088 | 54,346 | ||||||
Cash and cash equivalents at beginning of period
|
436,695 | 335,715 | ||||||
|
|
|
|
|||||
Cash and cash equivalents at end of period
|
$ | 683,783 | $ | 390,061 | ||||
|
|
|
|
Number
of Common Shares |
Common
Stock |
Additional
Paid-In
Capital |
Retained
Earnings |
Treasury
Stock |
Accumulated
Other Comprehensive Loss |
Total
Stockholders’
Deficit
|
||||||||||||||||||||||
Balance December 31, 2019
|
161,030 | $ | 1,610 | $ | 1,926,753 | $ | 6,587,403 | $ | (8,612,576 | ) | $ | (119,471 | ) | $ | (216,281 | ) | ||||||||||||
Net income
|
— | — | — | 53,562 | — | — | 53,562 | |||||||||||||||||||||
Adoption of new accounting pronouncement
|
— | — | — | (985 | ) | — | — | (985 | ) | |||||||||||||||||||
Other comprehensive loss
|
— | — | — | — | — | (18,946 | ) | (18,946 | ) | |||||||||||||||||||
Issuance of common stock for employees:
|
||||||||||||||||||||||||||||
Employee Stock Purchase Plan
|
9 | — | 1,736 | — | — | — | 1,736 | |||||||||||||||||||||
Stock options exercised
|
81 | 1 | 10,124 | — | — | — | 10,125 | |||||||||||||||||||||
Treasury stock
|
— | — | — | — | (176,225 | ) | — | (176,225 | ) | |||||||||||||||||||
Stock-based compensation
|
133 | 2 | 9,013 | — | — | — | 9,015 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Balance March 28, 2020
|
161,253 | $ | 1,613 | $ | 1,947,626 | $ | 6,639,980 | $ | (8,788,801 | ) | $ | (138,417 | ) | $ | (337,999 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Number
of Common Shares |
Common
Stock |
Additional
Paid-In
Capital |
Retained
Earnings |
Treasury
Stock |
Accumulated
Other Comprehensive Loss |
Total
Stockholders’
Equity
|
||||||||||||||||||||||
Balance December 31, 2020
|
161,666 | $ | 1,617 | $ | 2,029,465 | $ | 7,107,989 | $ | (8,788,984 | ) | $ | (117,943 | ) | $ | 232,144 | |||||||||||||
Net income
|
—
|
— | — | 148,127 | — | — | 148,127 | |||||||||||||||||||||
Other comprehensive income
|
—
|
— | — | — | — | 6,737 | 6,737 | |||||||||||||||||||||
Issuance of common stock for employees:
|
||||||||||||||||||||||||||||
Employee Stock Purchase Plan
|
11 | 1,855 | — | — | — | 1,855 | ||||||||||||||||||||||
Stock options exercised
|
95 | 1 | 15,129 | — | — | — | 15,130 | |||||||||||||||||||||
Treasury stock
|
— | — | — | — | (180,659 | ) | — | (180,659 | ) | |||||||||||||||||||
Stock-based compensation
|
87 | 1 | 7,627 | — | — | — | 7,628 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Balance April 3, 2021
|
161,859 | $ | 1,619 | $ | 2,054,076 | $ | 7,256,116 | $ | (8,969,643 | ) | $ | (111,206 | ) | $ | 230,962 | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at
Beginning
of Period
|
Impact of
CECL
Adoption
|
Additions
|
Deductions
|
Balance at
End of
Period
|
||||||||||||||||
Allowance for
Credit Losses
|
||||||||||||||||||||
April 3, 2021
|
$ | 14,381 | $ | — | $ | 775 | $ | (1,561 | ) | $ | 13,595 | |||||||||
March 28, 2020
|
$ | 9,560 | $ | 985 | $ | 3,506 | $ | (1,749 | ) | $ | 12,302 |
Total at
April 3,
2021
|
Quoted Prices
in Active
Markets
for Identical
Assets
(Level 1)
|
Significant
Other
Observable
Inputs
(Level 2)
|
Significant
Unobservable
Inputs
(Level 3)
|
|||||||||||||
Assets:
|
||||||||||||||||
U.S. Treasury securities
|
$
|
12,061 |
$
|
— |
$
|
12,061 |
$
|
— | ||||||||
Corporate debt securities
|
119,800 | — | 119,800 | — | ||||||||||||
Time deposits
|
58,712 | — | 58,712 | — | ||||||||||||
Waters 401(k) Restoration Plan assets
|
39,605 | 39,605 | — | — | ||||||||||||
Foreign currency exchange contracts
|
208 | — | 208 | — | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total
|
$ | 230,386 | $ | 39,605 | $ | 190,781 | $ | — | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Liabilities:
|
||||||||||||||||
Contingent consideration
|
$ | 1,225 | $ | — | $ | — | $ | 1,225 | ||||||||
Foreign currency exchange contracts
|
241 | — | 241 | — | ||||||||||||
Interest rate cross-currency swap agreements
|
20,030 | — | 20,030 | — | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total
|
$ | 21,496 | $ | — | $ | 20,271 | $ | 1,225 | ||||||||
|
|
|
|
|
|
|
|
Total at
December 31,
2020
|
Quoted
in Active
Markets
for Identical
Assets
(Level 1)
|
Significant
Other
Observable
Inputs
(Level 2)
|
Significant
Unobservable
Inputs
(Level 3)
|
|||||||||||||
Assets:
|
||||||||||||||||
Time deposits
|
$ | 6,451 | $ | — | $ | 6,451 | $ | — | ||||||||
Waters 401(k) Restoration Plan assets
|
38,988 | 38,988 | — | — | ||||||||||||
Foreign currency exchange contracts
|
836 | — | 836 | — | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total
|
$ | 46,275 | $ | 38,988 | $ | 7,287 | $ | — | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Liabilities:
|
||||||||||||||||
Contingent consideration
|
$ | 1,185 | $ | — | $ | — | $ | 1,185 | ||||||||
Foreign currency exchange contracts
|
185 | — | 185 | — | ||||||||||||
Interest rate cross-currency swap agreements
|
44,996 | — | 44,996 | — | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total
|
$ | 46,366 | $ | — | $ | 45,181 | $ | 1,185 | ||||||||
|
|
|
|
|
|
|
|
April 3, 2021
|
December 31, 2020
|
|||||||||||||||
Notional Value
|
Fair Value
|
Notional Value
|
Fair Value
|
|||||||||||||
Foreign currency exchange contracts:
|
||||||||||||||||
Other current assets
|
$ | 36,131 | $ | 208 | $ | 66,690 | $ | 836 | ||||||||
Other current liabilities
|
$ | 25,423 | $ | 241 | $ | 20,000 | $ | 185 | ||||||||
Interest rate cross-currency swap agreements:
|
||||||||||||||||
Other
liabilities
|
$ | 520,000 | $ | (20,030 | ) | $ | 560,000 | $ | (44,996 | ) | ||||||
Accumulated other
comprehensive loss
|
$ | 23,751 | $ | 44,996 |
|
|
Financial
|
|
Three Months Ended
|
|
|||||
|
|
Statement
Classification
|
|
April 3, 2021
|
|
|
March 28, 2020
|
|
||
Foreign currency exchange contracts:
|
|
|||||||||
Realized gains (losses) on closed contracts
|
Cost of sales | $ | 1,667 | $ | (2,981 | ) | ||||
Unrealized (losses) gains on open contracts
|
Cost of sales | (753 | ) | 1,325 | ||||||
|
|
|
|
|||||||
Cumulative net
pre-tax
gains (losses)
|
Cost of sales | $ | 914 | $ | (1,656 | ) | ||||
|
|
|
|
|||||||
Interest rate cross-currency swap agreements:
|
||||||||||
Interest earned
|
Interest income | $ | 3,827 | $ | 3,714 | |||||
Unrealized gains on
contracts, net
|
Stockholders’
equity (deficit)
|
$ | 21,244 | $ | 5,522 |
Balance at
Beginning
of Period
|
Accruals for
Warranties
|
Settlements
Made
|
Balance at
End of
Period
|
|||||||||||||
Accrued warranty liability:
|
||||||||||||||||
April 3, 2021
|
$ | 10,950 | $ | 2,337 | $ | (2,582 | ) | $ | 10,705 | |||||||
March 28, 2020
|
$ | 11,964 | $ | 1,671 | $ | (2,619 | ) | $ | 11,016 |
April 3, 2021
|
March 28, 2020
|
|||||||
Balance at the beginning of the period
|
$ | 239,759 | $ | 213,695 | ||||
Recognition of revenue included in balance at beginning of the period
|
(94,078 | ) | (82,604 | ) | ||||
Revenue deferred during the period, net of revenue recognized
|
182,384 | 138,430 | ||||||
|
|
|
|
|||||
Balance at the end of the period
|
$ | 328,065 | $ | 269,521 | ||||
|
|
|
|
April 3, 2021
|
||||
Deferred revenue and customer advances expected to be recognized in:
|
||||
One year or less
|
$ | 280,848 | ||
13-24
months
|
25,860 | |||
25 months and beyond
|
21,357 | |||
|
|
|||
Total
|
$ | 328,065 | ||
|
|
April 3, 2021
|
||||||||||||||||
Amortized
Cost
|
Unrealized
Gain
|
Unrealized
Loss
|
Fair
Value
|
|||||||||||||
U.S. Treasury securities
|
$ | 12,061 | $ | — | $ | — | $ | 12,061 | ||||||||
Corporate debt securities
|
119,810 | 7 | (17 | ) | 119,800 | |||||||||||
Time deposits
|
58,712 | — | — | 58,712 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total
|
$ | 190,583 | $ | 7 | $ | (17 | ) | $ | 190,573 | |||||||
|
|
|
|
|
|
|
|
|||||||||
Amounts included in:
|
||||||||||||||||
Cash equivalents
|
$ | 64,590 | $ | 1 | $ | (4 | ) | $ | 64,587 | |||||||
Investments
|
125,993 | 6 | (13 | ) | 125,986 | |||||||||||
|
|
|
|
|
|
|
|
|
||||||||
Total
|
$ | 190,583 | $ | 7 | $ | (17 | ) | $ | 190,573 | |||||||
|
|
|
|
|
|
|
|
|||||||||
December 31, 2020
|
||||||||||||||||
Amortized
Cost |
Unrealized
Gain |
Unrealized
Loss |
Fair
Value |
|||||||||||||
Time deposits
|
6,451 | — | — | 6,451 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total
|
$ | 6,451 | $ | — | $ | — | $ | 6,451 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Amounts included in:
|
||||||||||||||||
Investments
|
6,451 | — | — | 6,451 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total
|
$ | 6,451 | $ | — | $ | — | $ | 6,451 | ||||||||
|
|
|
|
|
|
|
|
April 3, 2021
|
December 31, 2020
|
|||||||
Due in one year or less
|
$ | 164,762 | $ | 6,451 | ||||
Due after one year through three years
|
25,811 | — | ||||||
|
|
|
|
|||||
Total
|
$ | 190,573 | $ | 6,451 | ||||
|
|
|
|
April 3, 2021
|
December 31, 2020
|
|||||||
Raw materials
|
$ | 141,600 | $ | 133,490 | ||||
Work in progress
|
21,689 | 18,678 | ||||||
Finished goods
|
164,678 | 152,113 | ||||||
|
|
|
|
|||||
Total inventories
|
$ | 327,967 | $ | 304,281 | ||||
|
|
|
|
April 3, 2021
|
December 31, 2020
|
|||||||||||||||||||||||
Gross
Carrying
Amount
|
Accumulated
Amortization
|
Weighted-
Average
Amortization
Period
|
Gross
Carrying
Amount
|
Accumulated
Amortization
|
Weighted-
Average
Amortization
Period
|
|||||||||||||||||||
Capitalized software
|
$ | 563,157 | $ | 403,614 | 5 years | $ | 584,452 | $ | 409,847 | 5 years | ||||||||||||||
Purchased intangibles
|
202,828 | 160,028 | 11 years | 205,585 | 160,342 | 11 years | ||||||||||||||||||
Trademarks
|
9,680 | — | — | 9,680 | — | — | ||||||||||||||||||
Licenses
|
5,960 | 5,773 | 6 years | 5,923 | 5,697 | 6 years | ||||||||||||||||||
Patents and other intangibles
|
92,321 | 63,678 | 8 years | 90,699 | 61,808 | 8 years | ||||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||
Total
|
$ | 873,946 | $ | 633,093 | 7 years | $ | 896,339 | $ | 637,694 | 7 years | ||||||||||||||
|
|
|
|
|
|
|
|
Senior
Unsecured Notes |
|
Term
|
|
Interest Rate
|
|
Face Value
(in millions) |
|
|
Maturity Date
|
|
Series N
|
5 years | 1.68% | $ | 100 |
|
March
2026
|
||||
Series O
|
10 years | 2.25% | $ | 400 |
|
March
2031
|
April 3, 2021
|
December 31, 2020
|
|||||||
Senior unsecured notes - Series E - 3.97%, due March 2021
|
— | 50,000 | ||||||
Senior unsecured notes - Series F - 3.40%, due June 2021
|
100,000 | 100,000 | ||||||
|
|
|
|
|||||
Total notes payable and debt, current
|
100,000 | 150,000 | ||||||
Senior unsecured notes - Series G - 3.92%, due June 2024
|
50,000 | 50,000 | ||||||
Senior unsecured notes - Series H - floating rate*, due June 2024
|
50,000 | 50,000 | ||||||
Senior unsecured notes - Series I - 3.13%, due May 2023
|
50,000 | 50,000 | ||||||
Senior unsecured notes - Series K - 3.44%, due May 2026
|
160,000 | 160,000 | ||||||
Senior unsecured notes - Series L - 3.31%, due September 2026
|
200,000 | 200,000 | ||||||
Senior unsecured notes - Series M - 3.53%, due September 2029
|
300,000 | 300,000 | ||||||
Senior unsecured notes - Series N - 1.68%, due March 2026
|
100,000 | — | ||||||
Senior unsecured notes - Series O - 2.25%, due March 2031
|
400,000 | — | ||||||
Credit agreement
|
300,000 | 400,000 | ||||||
Unamortized debt issuance costs
|
(6,910 | ) | (3,485 | ) | ||||
|
|
|
|
|||||
Total long-term debt
|
1,603,090 | 1,206,515 | ||||||
|
|
|
|
|||||
Total debt
|
$ | 1,703,090 | $ | 1,356,515 | ||||
|
|
|
|
* |
Series H senior unsecured notes bear interest at a
3-month
LIBOR for that floating rate interest period plus 1.25%.
|
April 3, 2021
|
March 28, 2020
|
|||||||
Balance at the beginning of the period
|
$ | 28,666 | $ | 27,790 | ||||
Net reductions for lapse of statutes taken during the period
|
(95 | ) | (101 | ) | ||||
Net additions for tax positions taken during the current period
|
289 | 203 | ||||||
|
|
|
|
|||||
Balance at the end of the period
|
$ | 28,860 | $ | 27,892 | ||||
|
|
|
|
Three Months Ended
|
||||||||
April 3, 2021
|
March 28, 2020
|
|||||||
Cost of sales
|
$ | 633 | $ | 570 | ||||
Selling and administrative expenses
|
6,420 | 7,373 | ||||||
Research and development expenses
|
1,252 | 1,253 | ||||||
|
|
|
|
|||||
Total stock-based compensation
|
$ | 8,305 | $ | 9,196 | ||||
|
|
|
|
|
|
Three Months Ended
|
|
|||||
Options Issued and Significant Assumptions Used to Estimate Option Fair Values
|
|
April 3, 2021
|
|
|
March 28, 2020
|
|
||
Options issued in thousands
|
139 | 227 | ||||||
Risk-free interest rate
|
0.8 | % | 1.4 | % | ||||
Expected life in years
|
|
|
6
|
|
|
|
6
|
|
Expected volatility
|
33.1 | % | 26.5 | % | ||||
Expected dividend
s
|
— | — | ||||||
|
|
Three Months Ended
|
|
|||||
Weighted-Average Exercise Price and Fair Value of Options on the Date of Grant
|
|
April 3, 2021
|
|
|
March 28, 2020
|
|
||
Exercise price
|
|
$
|
277.32
|
|
|
$
|
216.08
|
|
Fair value
|
|
$
|
91.63
|
|
|
$
|
61.70
|
|
|
|
Number of Shares
|
|
|
Exercise Price per Share
|
|
|
Weighted-Average
Exercise Price per Share |
|
|||||||||
Outstanding at December 31, 2020
|
1,067 | $ | 75.94 |
|
|
to
|
|
$
|
238.52
|
$ | 179.59 | |||||||
Granted
|
139 | $ | 250.15 |
|
|
to
|
|
$
|
280.80
|
$ | 277.32 | |||||||
Exercised
|
(95 | ) | $ | 99.22 |
|
|
to
|
|
$
|
238.52
|
$ | 159.10 | ||||||
Canceled
|
(125 | ) | $ | 139.51 |
|
|
to
|
|
$
|
224.37
|
$ | 183.98 | ||||||
|
|
|
|
|
|
|
||||||||||||
Outstanding at April 3, 2021
|
986 | $ | 75.94 |
|
|
to
|
|
$
|
266.05
|
$ | 194.77 | |||||||
|
|
|
|
|
|
|
|
Shares
|
Weighted-Average
Grant Date Fair Value per Share |
|||||||
Unvested at December 31, 2020
|
271 | $ | 202.00 | |||||
Granted
|
76 | $ | 279.66 | |||||
Vested
|
(80 | ) | $ | 182.14 | ||||
Forfeited
|
(3 | ) | $ | 210.35 | ||||
|
|
|||||||
Unvested at April 3, 2021
|
264 | $ | 230.28 | |||||
|
|
Three Months Ended
|
||||||||
Performance Stock Units Issued and Significant Assumptions Used
to Estimate Fair Values |
April 3, 2021
|
March 28, 2020
|
||||||
Performance stock units issued (in thousands)
|
41 | 58 | ||||||
Risk-free interest rate
|
0.2 | % | 1.3 | % | ||||
Expected life in years
|
2.9 | 2.9 | ||||||
Expected volatility
|
38.7 | % | 25.1 | % | ||||
Average volatility of peer companies
|
34.7 | % | 26.1 | % | ||||
Correlation coefficient
|
45.8 | % | 36.6 | % | ||||
Expected dividends
|
— | — |
Shares
|
Weighted-Average
Fair Value per Share |
|||||||
Unvested at December 31, 2020
|
95 | $ | 230.36 | |||||
Granted
|
41 | $ | 315.98 | |||||
Vested
|
(5 | ) | $ | 242.94 | ||||
Forfeited
|
(33 | ) | $ | 228.24 | ||||
|
|
|||||||
Unvested at April 3, 2021
|
98 | $ | 266.25 | |||||
|
|
Three Months Ended April 3, 2021
|
||||||||||||
Net Income
(Numerator) |
Weighted-
Average (Denominator) |
Per
Amount |
||||||||||
Net income per basic common share
|
$ | 148,127 | 62,260 | $ | 2.38 | |||||||
Effect of dilutive stock option, restricted stock, performance stock unit and restricted stock unit securities
|
— | 372 | (0.01 | ) | ||||||||
|
|
|
|
|
|
|||||||
Net income per diluted common share
|
$ | 148,127 | 62,632 | $ | 2.37 | |||||||
|
|
|
|
|
|
Three Months Ended March 28, 2020
|
||||||||||||
Net Income
(Numerator) |
Weighted-
Average Shares
(Denominator) |
Per
Amount |
||||||||||
Net income per basic common share
|
$ | 53,562 | 62,232 | $ | 0.86 | |||||||
Effect of dilutive stock option, restricted stock, performance stock unit and restricted stock unit securities
|
— | 394 | — | |||||||||
|
|
|
|
|
|
|||||||
Net income per diluted common share
|
$ | 53,562 | 62,626 | $ | 0.86 | |||||||
|
|
|
|
|
|
Currency
Translation |
Unrealized Loss on
Retirement Plans |
Unrealized Gain
(Loss) on Investments |
Accumulated Other
Comprehensive Loss |
|||||||||||||
Balance at December 31, 2020
|
$ | (98,082 | ) | $ | (19,861 | ) | $ | — | $ | (117,943 | ) | |||||
Other comprehensive loss, net of tax
|
5,825 | 922 | (10 | ) | 6,737 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Balance at April 3, 2021
|
$ | (92,257 | ) | $ | (18,939 | ) | $ | (10 | ) | $ | (111,206 | ) | ||||
|
|
|
|
|
|
|
|
Three Months Ended
|
||||||||||||||||
April 3, 2021
|
March 28, 2020
|
|||||||||||||||
U.S. Retiree
|
Non-U.S.
|
U.S. Retiree
|
Non-U.S.
|
|||||||||||||
Healthcare
|
Pension
|
Healthcare
|
Pension
|
|||||||||||||
Plan
|
Plans
|
Plan
|
Plans
|
|||||||||||||
Service cost
|
$ | 233 | $ | 1,160 | $ | 151 | $ | 1,099 | ||||||||
Interest cost
|
139 | 315 | 176 | 345 | ||||||||||||
Expected return on plan assets
|
(255 | ) | (466 | ) | (219 | ) | (456 | ) | ||||||||
Net amortization:
|
||||||||||||||||
Prior service credit
|
(5 | ) | (41 | ) | (5 | ) | (40 | ) | ||||||||
Net actuarial loss
|
— | 262 | — | 385 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Net periodic pension cost
|
$ | 112 | $ | 1,230 | $ | 103 | $ | 1,333 | ||||||||
|
|
|
|
|
|
|
|
Three Months Ended
|
||||||||
April 3, 2021
|
March 28, 2020
|
|||||||
Product net sales:
|
||||||||
Waters instrument systems
|
$ | 216,072 | $ | 142,829 | ||||
Chemistry consumables
|
118,974 | 97,245 | ||||||
TA instrument systems
|
46,976 | 34,109 | ||||||
|
|
|
|
|||||
Total product sales
|
382,022 | 274,183 | ||||||
Service net sales:
|
||||||||
Waters service
|
206,832 | 174,137 | ||||||
TA service
|
19,691 | 16,619 | ||||||
|
|
|
|
|||||
Total service sales
|
226,523 | 190,756 | ||||||
|
|
|
|
|||||
Total net sales
|
$ | 608,545 | $ | 464,939 | ||||
|
|
|
|
Three Months Ended
|
||||||||
April 3, 2021
|
March 28, 2020
|
|||||||
Net Sales:
|
||||||||
Asia:
|
||||||||
China
|
$ | 102,919 | $ | 47,231 | ||||
Japan
|
50,296 | 45,089 | ||||||
Asia Other
|
76,327 | 66,760 | ||||||
|
|
|
|
|||||
Total Asia
|
229,542 | 159,080 | ||||||
Americas:
|
||||||||
United States
|
162,433 | 143,898 | ||||||
Americas Other
|
34,924 | 28,278 | ||||||
|
|
|
|
|||||
Total Americas
|
197,357 | 172,176 | ||||||
Europe
|
181,646 | 133,683 | ||||||
|
|
|
|
|||||
Total net sales
|
$ | 608,545 | $ | 464,939 | ||||
|
|
|
|
Three Months Ended
|
||||||||
April 3, 2021
|
March 28, 2020
|
|||||||
Pharmaceutical
|
$ | 360,148 | $ | 272,563 | ||||
Industrial
|
183,273 | 143,354 | ||||||
Academic and government
|
65,124 | 49,022 | ||||||
|
|
|
|
|||||
Total net sales
|
$ | 608,545 | $ | 464,939 | ||||
|
|
|
|
Three Months Ended
|
||||||||
April 3, 2021
|
March 28, 2020
|
|||||||
Net sales recognized at a point in time:
|
||||||||
Instrument systems
|
$ | 263,048 | $ | 176,938 | ||||
Chemistry consumables
|
118,974 | 97,245 | ||||||
Service sales recognized at a point in time (time & materials)
|
79,287 | 67,742 | ||||||
|
|
|
|
|||||
Total net sales recognized at a point in time
|
461,309 | 341,925 | ||||||
Net sales recognized over time:
|
||||||||
Service and software sales recognized over time (contracts)
|
147,236 | 123,014 | ||||||
|
|
|
|
|||||
Total net sales
|
$ | 608,545 | $ | 464,939 | ||||
|
|
|
|
Three Months Ended
|
||||||||||||
April 3, 2021
|
March 28, 2020
|
% change
|
||||||||||
Revenues:
|
||||||||||||
Product sales
|
$ | 382,022 | $ | 274,183 |
|
39
|
%
|
|||||
Service sales
|
226,523 | 190,756 |
|
19
|
%
|
|||||||
|
|
|
|
|
|
|||||||
Total net sales
|
608,545 | 464,939 |
|
31
|
%
|
|||||||
Costs and operating expenses:
|
||||||||||||
Cost of sales
|
254,147 | 210,644 |
|
21
|
%
|
|||||||
Selling and administrative expenses
|
143,196 | 147,735 |
|
(3
|
%)
|
|||||||
Research and development expenses
|
38,092 | 34,989 |
|
9
|
%
|
|||||||
Purchased intangibles amortization
|
1,840 | 2,625 |
|
(30
|
%)
|
|||||||
Litigation provision
|
— | 666 |
|
(100
|
%)
|
|||||||
|
|
|
|
|
|
|||||||
Operating income
|
171,270 | 68,280 |
|
151
|
%
|
|||||||
Operating income as a % of sales
|
|
28.1
|
%
|
|
14.7
|
%
|
||||||
Other income (expense), net
|
9,359 | (374 | ) |
|
2,602
|
%
|
||||||
Interest expense, net
|
(6,845 | ) | (10,043 | ) |
|
(32
|
%)
|
|||||
|
|
|
|
|
|
|||||||
Income before income taxes
|
173,784 | 57,863 |
|
200
|
%
|
|||||||
Provision for income taxes
|
25,657 | 4,301 |
|
497
|
%
|
|||||||
|
|
|
|
|
|
|||||||
Net income
|
$ | 148,127 | $ | 53,562 |
|
177
|
%
|
|||||
|
|
|
|
|
|
|||||||
Net income per diluted common share
|
$ | 2.37 | $ | 0.86 |
|
176
|
%
|
Three Months Ended
|
||||||||||||
April 3, 2021
|
March 28, 2020
|
% change
|
||||||||||
Net Sales:
|
||||||||||||
Asia:
|
||||||||||||
China
|
$ | 102,919 | $ | 47,231 |
|
118
|
%
|
|||||
Japan
|
50,296 | 45,089 |
|
12
|
%
|
|||||||
Asia Other
|
76,327 | 66,760 |
|
14
|
%
|
|||||||
|
|
|
|
|
|
|||||||
Total Asia
|
229,542 | 159,080 |
|
44
|
%
|
|||||||
Americas:
|
||||||||||||
United States
|
162,433 | 143,898 |
|
13
|
%
|
|||||||
Americas Other
|
34,924 | 28,278 |
|
24
|
%
|
|||||||
|
|
|
|
|
|
|||||||
Total Americas
|
197,357 | 172,176 |
|
15
|
%
|
|||||||
Europe
|
181,646 | 133,683 |
|
36
|
%
|
|||||||
|
|
|
|
|
|
|||||||
Total net sales
|
$ | 608,545 | $ | 464,939 |
|
31
|
%
|
|||||
|
|
|
|
|
|
Three Months Ended
|
||||||||||||
April 3, 2021
|
March 28, 2020
|
% change
|
||||||||||
Pharmaceutical
|
$ | 360,148 | $ | 272,563 |
|
32
|
%
|
|||||
Industrial
|
183,273 | 143,354 |
|
28
|
%
|
|||||||
Academic and government
|
65,124 | 49,022 |
|
33
|
%
|
|||||||
|
|
|
|
|
|
|||||||
Total net sales
|
$ | 608,545 | $ | 464,939 |
|
31
|
%
|
|||||
|
|
|
|
|
|
Three Months Ended
|
||||||||||||||||||||
April 3, 2021
|
% of
Total |
March 28, 2020
|
% of
Total |
% change
|
||||||||||||||||
Waters instrument systems
|
$ | 216,072 |
|
40
|
%
|
$ | 142,829 |
|
34
|
%
|
|
51
|
%
|
|||||||
Chemistry consumables
|
118,974 |
|
22
|
%
|
97,245 |
|
24
|
%
|
|
22
|
%
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total Waters product sales
|
335,046 |
|
62
|
%
|
240,074 |
|
58
|
%
|
|
40
|
%
|
|||||||||
Waters service
|
206,832 |
|
38
|
%
|
174,137 |
|
42
|
%
|
|
19
|
%
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total Waters net sales
|
$ | 541,878 |
|
100
|
%
|
$ | 414,211 |
|
100
|
%
|
|
31
|
%
|
|||||||
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
||||||||||||||||||||
April 3, 2021
|
% of
Total |
March 28, 2020
|
% of
Total |
% change
|
||||||||||||||||
TA instrument systems
|
$ | 46,976 |
|
70%
|
|
$ | 34,109 |
|
67%
|
|
38% | |||||||||
TA service
|
19,691 |
|
30%
|
|
16,619 |
|
33%
|
|
18% | |||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total TA net sales
|
$ | 66,667 |
|
100%
|
|
$ | 50,728 |
|
100%
|
|
31% | |||||||||
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
||||||||
April 3, 2021
|
March 28, 2020
|
|||||||
Net income
|
$ | 148,127 | $ | 53,562 | ||||
Depreciation and amortization
|
31,356 | 29,188 | ||||||
Stock-based compensation
|
8,305 | 9,196 | ||||||
Deferred income taxes
|
2,787 | (2,525 | ) | |||||
Change in accounts receivable
|
7,945 | 54,026 | ||||||
Change in inventories
|
(30,544 | ) | (29,399 | ) | ||||
Change in accounts payable and other current liabilities
|
(29,758 | ) | (15,825 | ) | ||||
Change in deferred revenue and customer advances
|
89,048 | 46,465 | ||||||
Other changes
|
(8,862 | ) | 6,947 | |||||
|
|
|
|
|||||
Net cash provided by operating activities
|
218,404 | 151,635 | ||||||
Net cash used in investing activities
|
(159,004 | ) | (130,175 | ) | ||||
Net cash provided by financing activities
|
188,775 | 32,918 | ||||||
Effect of exchange rate changes on cash and cash equivalents
|
(1,087 | ) | (32 | ) | ||||
|
|
|
|
|||||
Increase in cash and cash equivalents
|
$ | 247,088 | $ | 54,346 | ||||
|
|
|
|
• |
The changes in accounts receivable were primarily attributable to timing of payments made by customers and timing of sales. Days sales outstanding decreased to 84 days at April 3, 2021 as compared to 99 days at March 28, 2020.
|
• |
The changes in accounts payable and other current liabilities were a result of the timing of payments to vendors, as well as the annual payment of management incentive compensation.
|
• |
Net cash provided from deferred revenue and customer advances results from annual increases in new service contracts as a higher installed base of customers renew annual service contracts.
|
• |
Other changes were attributable to variation in the timing of various provisions, expenditures, prepaid income taxes and accruals in other current assets, other assets and other liabilities.
|
• |
Risks related to the effects of the
COVID-19
pandemic on our business, including: portions of our global workforce being unable to work fully and/or effectively due to working remotely, illness, quarantines, government actions, facility closures or other reasons related to the pandemic, increased risks of cyber attacks resulting from our temporary remote working model, disruptions in our manufacturing capabilities or to our supply chain, volatility and uncertainty in global capital markets limiting our ability to access capital, customers being unable to make timely payment for purchases and volatility in demand for our products.
|
• |
Foreign currency exchange rate fluctuations that could adversely affect translation of the Company’s future sales, financial operating results and the condition of its
non-U.S.
operations, especially when a currency weakens against the U.S. dollar.
|
• |
Current global economic, sovereign and political conditions and uncertainties, particularly regarding the effect of the
COVID-19
pandemic; new or proposed tariffs or trade regulations or changes in the interpretation or enforcement of existing regulations; the United Kingdom’s exit from the European Union as well as the Chinese government’s ongoing tightening of restrictions on procurement by government-funded customers; the Company’s ability to access capital and maintain liquidity in volatile market conditions; changes in timing and demand for the Company’s products among the Company’s customers and various market sectors or geographies, particularly if they should reduce capital expenditures or are unable to obtain funding, as in the cases of governmental, academic and research institutions; the effect of mergers and acquisitions on customer demand for the Company’s products; and the Company’s ability to sustain and enhance service.
|
• |
Negative industry trends; changes in the competitive landscape as a result of changes in ownership, mergers and continued consolidation among the Company’s competitors; 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 developing markets; spending by certain
end-markets;
ability to obtain alternative sources for components and modules; and the possibility that future sales of new products related to acquisitions, which trigger contingent purchase payments, may exceed the Company’s expectations.
|
• |
Increased regulatory burdens as the Company’s business evolves, especially with respect to the United States Food and Drug Administration and the United States Environmental Protection Agency, among others, as well as regulatory, environmental and logistical obstacles affecting the distribution of the Company’s products, completion of purchase order documentation by our customers and ability of customers to obtain letters of credit or other financing alternatives.
|
• |
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; the impact and costs of changes in statutory or contractual tax rates in jurisdictions in which the Company operates, specifically as it relates to the 2017 Tax Act in the U.S.; shifts in taxable income among jurisdictions with different effective tax rates; and the outcome of and costs associated with ongoing and future tax audit examinations or changes in respective country legislation affecting the Company’s effective rates.
|
Period
|
Total Number
of Shares Purchased (1) |
Average
Price Paid per Share |
Total Number of
Shares Purchased as Part of Publicly Announced Programs |
Maximum Dollar
Value of Shares that May Yet Be Purchased Under
the Programs (2)
|
||||||||||||
January 1, 2021 to January 30, 2021
|
— | $ | — | — | $ | 1,524,905 | ||||||||||
January 31, 2021 to February 27, 2021
|
254 | $ | 281.49 | 229 | $ | 1,460,425 | ||||||||||
February 28, 2021 to April 3, 2021
|
401 | $ | 272.22 | 399 | $ | 1,351,782 | ||||||||||
|
|
|
|
|||||||||||||
Total
|
655 | $ | 275.82 | 628 | $ | 1,351,782 | ||||||||||
|
|
|
|
(1) |
The Company repurchased 27 thousand shares of common stock at a cost of $8 million related to the vesting of restricted stock during the three months ended April 3, 2021.
|
(2) |
In January 2019, the Company’s Board of Directors authorized the Company to repurchase up to $4 billion of its outstanding common stock in open market or private transactions over a
two-year
period. This program replaced the remaining amounts available under the
pre-existing
authorization. In December 2020, the Company’s Board of Directors authorized the extension of the share repurchase program through January 21, 2023.
|
(*) |
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.
|
WATERS CORPORATION |
/s/ Michael F. Silveira
|
Michael F. Silveira |
Interim Chief Financial Officer |
(principal financial officer)
|
(principal accounting officer)
|
Exhibit 10.2
April 16, 2021
Mr. Amol Chaubal
22 Overlook Road
Hopkinton, MA 01748
Dear Amol:
This letter (the Agreement) confirms the terms and conditions of your employment with Waters Corporation (the Company).
1. Position and Duties.
(a) Effective as of May 12, 2021 (the Start Date), you will be employed by the Company, on a full-time basis, as its Senior Vice President and Chief Financial Officer and you shall report to the President and Chief Executive Officer of the Company. In addition to serving as the Companys Senior Vice President and Chief Financial Officer, you may be asked from time to time to serve as a director or officer of one or more of the Companys Affiliates, in each case, without further compensation. For purposes of this Agreement, Affiliates means all persons and entities directly or indirectly controlling, controlled by or under common control with the Company.
(b) You agree to perform the duties of your position and such other duties and responsibilities as may be reasonably assigned to you from time to time. You also agree that, while employed by the Company, you will devote your full business time and your best efforts, business judgment, skill and knowledge exclusively to the advancement of the business interests of the Company and its Affiliates and to the discharge of your duties and responsibilities for them. Notwithstanding the foregoing, you shall be permitted to engage in civic, charitable and philanthropic activities, manage your passive personal investments and, with the consent of the Board of Directors of the Company (the Board) or a committee thereof, to serve on the board of directors of for-profit and not-for-profit companies or organizations, provided that, in the aggregate, such activities do not interfere or conflict with your duties to the Company.
(c) Further, you agree that, while employed by the Company, you will comply with all written Company policies, practices and procedures and all codes of ethics or business conduct policies applicable to your position, as in effect from time to time.
2. Compensation and Benefits. During your employment, as compensation for all services performed by you for the Company and its Affiliates, the Company will provide you the following pay and benefits:
(a) Base Salary. The Company shall pay you a base salary at the rate of $500,000 per year, payable in accordance with the regular payroll practices of the Company and subject to annual review by the Compensation Committee of the Board (the Compensation Committee) (such base salary, as in effect from time to time, Base Salary).
34 Maple Street Milford, MA 01757-3696 U.S.A. [T] 508.478.2000 [T] 1.800.252.4752 [F] 508.872.1990 [W] www.waters.com
(b) Annual Incentive Compensation. For each fiscal year completed during your employment with the Company, including the 2021 fiscal year, you will be eligible to earn annual incentive compensation under the Companys Annual Incentive Plan, or such other bonus plan in which Company executives participate generally (such plan, as in effect from time to time, the AIP). Your target annual incentive compensation opportunity will be 75% of your Base Salary. The actual amount payable in respect of your annual incentive compensation opportunity, if any, for any fiscal year will be determined by the Compensation Committee based on the achievement of performance goals previously established by the Compensation Committee in its discretion. For the 2021 fiscal year, any annual incentive compensation paid to you under the AIP will be prorated based on the number of months (whether full or partial) you were employed by the Company during such fiscal year. Any annual incentive compensation due hereunder will be paid in accordance with the terms of the AIP and on or before March 15th of the year following the fiscal year with respect to which the annual incentive compensation is earned, subject to your remaining employed by the Company on the date that such annual incentive compensation is paid, except as otherwise specifically provided herein.
(c) Initial Annual Equity Grant. On the Start Date, you will be granted equity-based awards with respect to shares of the Companys common stock, par value $0.01 per share (Common Stock), having a total grant date value of approximately $1,500,000 (each, an Initial Award and, collectively, the Initial Awards). It is expected that the Initial Awards will be 50% in the form of a non-qualified stock option and 50% in the form of a restricted stock unit award. The Initial Awards will be granted under the Companys 2020 Equity Incentive Plan (as in effect from time to time, the EIP) and will be evidenced by award agreements. Each Initial Award will vest as to 20% of the shares of Common Stock underlying the award on each of the first five anniversaries of the date of grant, in each case, subject to your continued employment with the Company on each vesting date, and will be subject to the other terms and conditions of the EIP and the award agreements evidencing the Initial Awards.
(d) Future Annual Equity Grants. You will be eligible for future annual equity grants under the EIP at such times and in such form as determined by the Compensation Committee in its discretion.
(e) Sign-On Bonus. On or as soon as practicable following the Start Date, subject to your continued employment with the Company through the payment date, you will be paid a lump sum cash bonus of $200,000 (the Sign-On Bonus). In the event you resign without Good Reason (as defined below) or your employment is terminated by the Company for Cause (as defined below) within the one (1)-year period following the Start Date, you shall repay to the Company within thirty (30) days following the date of termination a prorated portion of the Sign-On Bonus based on the number of full and partial months remaining in such one (1) year period as of the date of such termination of employment.
(f) Participation in Employee Benefit Plans. You will be entitled to participate in all employee benefit plans or programs from time to time in effect for executives of the Company generally, except to the extent such plans are duplicative of benefits otherwise provided to you under this Agreement. Your participation will be subject to the terms of the applicable plan or program documents and generally applicable Company policies, as the same may be in effect from time to time, and any other restrictions or limitations imposed by law.
34 Maple Street Milford, MA 01757-3696 U.S.A. [T] 508.478.2000 [T] 1.800.252.4752 [F] 508.872.1990 [W] www.waters.com
(g) Vacations. You will be entitled to earn up to five (5) weeks of vacation per year, in addition to holidays observed by the Company. Vacation may be taken at such times and intervals as you shall determine, subject to the business needs of the Company. Vacation shall otherwise be subject to the policies of the Company, as in effect from time to time.
(h) Business Expenses. The Company will pay or reimburse you for all reasonable business expenses incurred or paid by you in the performance of your duties and responsibilities for the Company, subject to any restrictions on such expenses set by the Company and to such reasonable substantiation and documentation as may be specified from time to time. Your right to payment or reimbursement for expenses under this Agreement shall be subject to the following additional rules: (i) the amount of expenses eligible for payment or reimbursement during any calendar year shall not affect the expenses eligible for payment or reimbursement in any other calendar year; (ii) payment or reimbursement shall be made not later than December 31 of the calendar year following the calendar year in which the expense or payment was incurred; and (iii) the right to payment or reimbursement is not subject to liquidation or exchange for any other benefit.
3. Confidential Information and Restricted Activities.
(a) Confidential Information. During the course of your employment with the Company, you will learn of Confidential Information, as defined below, and you may develop Confidential Information on behalf of the Company and its Affiliates. You agree that you will not use or disclose to any Person, as defined below (except as required for the good faith performance of your duties and responsibilities for the Company), any Confidential Information obtained by you incident to your employment or any other association with the Company or any of its Affiliates. You agree that this restriction shall continue to apply after your employment terminates, regardless of the reason for such termination. For purposes of this Agreement, Confidential Information means any and all information of the Company and its Affiliates that is not generally available to the public. Confidential Information also includes any information received by the Company or any of its Affiliates from any Person with any understanding, express or implied, that it will not be disclosed. Confidential Information does not include information that enters the public domain, other than through your breach of your obligations under this Agreement. You understand and acknowledge that you will not be held criminally or civilly liable under any federal or state trade secret law for disclosing a trade secret in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, in each case, solely for the purpose of reporting or investigating a suspected violation of law, or for disclosing a trade secret in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Notwithstanding this immunity from liability, you may be held liable if you unlawfully access trade secrets or Confidential Information by unauthorized means. For purposes of this Agreement, Person means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust or any other entity or organization, other than the Company or any of its Affiliates. Notwithstanding the foregoing, nothing in this Agreement limits, restricts or in any other way affects your communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
(b) Protection of Documents. All documents, records and files, in any media of whatever kind and description, relating to the business, present or otherwise, of the Company or any of its Affiliates, and any copies, in whole or in part, thereof (the Documents), whether or not prepared by you, shall be the sole and exclusive property of the Company. You agree to safeguard all Documents and to surrender to the Company, at the time your employment terminates or at such earlier time or times as the Board or its designee may specify, all Documents then in your possession or control. You also agree to disclose to the Company, at the time your employment terminates or at such earlier time or times as the Board or its designee may specify, all passwords necessary or desirable to obtain access to, or that would assist in obtaining access to, any information which you have password-protected on any computer equipment, network or system of the Company or any of its Affiliates.
34 Maple Street Milford, MA 01757-3696 U.S.A. [T] 508.478.2000 [T] 1.800.252.4752 [F] 508.872.1990 [W] www.waters.com
(c) Assignment of Rights to Intellectual Property. You shall promptly and fully disclose all Intellectual Property (as defined below) to the Company. You hereby assign and agree to assign to the Company (or as otherwise directed by the Company) your full right, title and interest in and to all Intellectual Property. You agree to execute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Intellectual Property to the Company and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. You will not charge the Company for time spent in complying with these obligations. All copyrightable works that you create during your employment shall be considered work made for hire and shall, upon creation, be owned exclusively by the Company. For purposes of this Agreement, Intellectual Property means inventions, discoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets) (collectively, Inventions) conceived, made, created, developed or reduced to practice by you (whether alone or with others, whether or not during normal business hours or on or off Company premises) during your employment that relate to the business of the Company or to any prospective activity of the Company or any of its Affiliates, that result from any work performed by you for the Company or any of its Affiliates or that make use of Confidential Information or any of the equipment or facilities of the Company or any of its Affiliates. Notwithstanding the foregoing, Intellectual Property shall not include any Invention that you develop entirely on your own time, without using the equipment, supplies, facilities or trade secret information of the Company or any of its Affiliates, unless such Invention (a) relates to the business of the Company or any of its Affiliates for whom you are performing services or to the actual or demonstrably anticipated research or development of the Company or any of its Affiliates for whom you are performing services or (b) results from any work performed by you for the Company or any of its Affiliates.
(d) Non-Disparagement. Subject to the last sentence of Section 3(a) above, you agree that you will never disparage or criticize any of the Company, its Affiliates, their business, their management or members of the Board or their products or services, and that you will not otherwise do or say anything that could disrupt the good morale of employees of the Company or any of its Affiliates or harm the interests or reputation of the Company or any of its Affiliates.
(e) Restricted Activities. You acknowledge that by virtue of your employment with the Company or any of its Affiliates, you will provide services or have a material presence or influence in every country, city, county and other locale in which the Company or any of its Affiliates provides services or has a material presence or influence during the last two (2) years of your employment with the Company or any of its Affiliates (the Restricted Area). You agree that the following restrictions on your activities during and after your employment are necessary to protect the good will, Confidential Information, trade secrets and other legitimate interests of the Company and its Affiliates and are supported by mutually agreed upon fair, reasonable, valid and sufficient consideration (including, without limitation, the Initial Awards):
(i) While you are employed by the Company and for (a) one (1) year after your termination of employment for any reason, except as provided in clause (b), or (b) two (2) years following your termination of your employment if, at any time, you have breached any fiduciary duty to the Company or its Affiliates or have engaged in an Unlawful Taking of Company Property (as defined below), (either such period, as applies, the Non-Compete Restricted Period), you shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the Company or any of its Affiliates or undertake any planning for any business that is competitive with the business of the Company or
34 Maple Street Milford, MA 01757-3696 U.S.A. [T] 508.478.2000 [T] 1.800.252.4752 [F] 508.872.1990 [W] www.waters.com
any of its Affiliates in the Restricted Area in a Restricted Position. Specifically, but without limiting the foregoing, you agree not to work or provide services, in a Restricted Position, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Person that is engaged in any business that is competitive with the business of the Company or its Affiliates, as conducted or in planning (provided such planning has been approved by the Board) during your employment with the Company anywhere in the Restricted Area; provided, however, this Section 3(e)(i) will not apply after your employment is terminated without Cause for Purposes of Section 3(e)(i). Notwithstanding the foregoing, neither (x) nor (y), as provided below, shall be considered a violation of this Section 3(e)(i): (x) the ownership of not more than two percent (2%) of the outstanding securities of any class of any entity that is listed on a national securities exchange or quoted or traded in the over-the-counter market, or (y) the provision of services (as an employee, independent contractor or otherwise) to an entity where no more than a de minimis amount of revenue is derived from a business that is competitive with the business of the Company or any of its Affiliates, provided you are not responsible for (and do not participate in) the day-to-day management or supervision of such business and provided you do not have direct (which shall not mean indirect) supervision over the individual or individuals who are so responsible for such day-to-day management or supervision.
(ii) While you are employed by the Company and during the twenty-four (24)-month period immediately following termination of your employment, regardless of the reason therefor (in the aggregate, the Restricted Period), you shall not, directly or indirectly, except, while employed by the Company, in the good faith performance of your duties to the Company, (a) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or (b) seek to persuade any such customer or prospective customer of the Company or any of its Affiliates to conduct with anyone else any business or activity which such customer or prospective customer conducts or could conduct with the Company or any of its Affiliates; provided, however, that these restrictions shall apply only with respect to those Persons who are or have been a customer of the Company or any of its Affiliates at any time within the immediately preceding one (1)-year period or whose business has been solicited on behalf of the Company or any of the Affiliates by any of their officers, employees or agents within such one (1)-year period, other than by form letter, blanket mailing or published advertisement.
(iii) During the Restricted Period, you shall not, and shall not assist any other Person to, (a) hire or solicit for hiring any employee of the Company or any of its Affiliates or seek to persuade any employee of the Company or any of its Affiliates to discontinue employment; or (b) solicit or encourage any independent contractor providing services to the Company or any of its Affiliates to terminate or diminish his, her or its relationship with them; provided, however, the foregoing shall not be violated by general advertising or general solicitation for employment not specifically directed at the Companys employees. For the purposes of this Agreement, an employee or an independent contractor of the Company or any of its Affiliates is any person who was such at any time within the preceding one (1) year.
(iv) In signing this Agreement, you give the Company assurance that you have carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed on you under this Section 3. You agree without reservation that these restraints are necessary for the reasonable and proper protection of the Company and its Affiliates, and that each and every one of the restraints is reasonable in respect to subject matter, length of time and geographic area. You further agree that, were you to breach any of the covenants contained in this Section 3, the damage to the Company and its Affiliates would be irreparable. You therefore agree that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by you of any of those covenants, without having to post bond. So that the Company may enjoy the full benefit of the covenants contained in this Section 3, you further agree that the Restricted Period shall be tolled, and shall not run, during the period of any breach by you of any of the covenants contained in Section 3(e)(ii) or (iii). You and the
34 Maple Street Milford, MA 01757-3696 U.S.A. [T] 508.478.2000 [T] 1.800.252.4752 [F] 508.872.1990 [W] www.waters.com
Company further agree that, in the event that any provision of this Section 3 is determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, that provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law. You also agree that each of the Companys Affiliates shall have the right to enforce all of your obligations to that Affiliate under this Agreement, including without limitation pursuant to this Section 3. Finally, no claimed breach of this Agreement or other violation of law attributed to the Company, or change in the nature or scope of your employment relationship with the Company or any of its Affiliates, shall operate to excuse you from the performance of your obligations under this Section 3.
(f) Definitions. For purposes of this Agreement, the following terms will have the meanings set forth below:
(i) Cause for Purposes of Section 3(e)(i) will exist if there is either (A) Cause, (B) a reasonable basis for the Companys dissatisfaction with you for reasons such as lack of capacity or diligence, failure to conform to usual standards of conduct, or other culpable or inappropriate behavior, or (C) grounds for termination existing that are reasonably related, in the Companys honest judgment, to the needs of the business.
(ii) Restricted Position means a position involving any of the services provided by you to the Company or any of its Affiliates during the last two (2) years of your employment with the Company or any of its Affiliates.
(iii) Unlawful Taking of Company Property means your failure to (A) return to the Company or its Affiliate (as applicable), within five (5) days following your termination of employment for any reason, all Documents and physical property of the Company or any of its Affiliates, including but not limited to, any credit cards; work laptops, iPads, mobile phones, data storage devices of any kind or other computer or electronic equipment; employee identification materials; keys; documents, files, papers, memoranda, letters or other communications or work product; or work-related passwords or passcodes, in each case, which you have in your possession, custody or control that were written, created, authorized, signed, received or transmitted during your employment; and (B) at the direction of the Company, within ten (10) days following your termination of employment, either provide copies to the Company and then permanently delete the originals of, or permanently delete the originals of, all electronic property of the Company or any of its Affiliates, including, but not limited to, work files and emails, including, but not limited to, on any personal email account, personal computer, Dropbox account, zip drive, thumb drive, external hard drive, or cloud storage system.
4. Termination of Employment. Your employment with the Company shall continue until terminated pursuant to this Section 4.
(a) By the Company For Cause. The Company may terminate your employment for Cause upon notice to you setting forth in reasonable detail the nature of the cause. For purposes of this Agreement, Cause shall mean: (i) your indictment for, or the pleading of guilty or nolo contendere to, any felony or any crime involving moral turpitude; (ii) your gross negligence, breach of fiduciary duty, breach of any non-competition, non-solicitation or developments agreement or covenant in favor of the Company or material breach of any confidentiality agreement or covenant in favor of the Company; (iii) you shall have willfully and continually failed to substantially perform your duties with the Company after a written demand for substantial performance is delivered by the Company, which demand specifically identifies the manner in which the Company believes that you have not substantially performed your duties pursuant to the disciplinary procedures of the Company, and such failure of substantial performance shall have continued for a period of thirty (30) days after such written demand; (iv) you have been chronically absent from work (excluding vacations, illnesses or
34 Maple Street Milford, MA 01757-3696 U.S.A. [T] 508.478.2000 [T] 1.800.252.4752 [F] 508.872.1990 [W] www.waters.com
leaves of absences); (v) the commission by you of an act of fraud, embezzlement or misappropriation against the Company; (vi) you shall have refused, after explicit notice, to obey any lawful resolution or direction by the Board or a committee thereof or the President and Chief Executive Officer of the Company, in either case, which is consistent with your duties as an officer of the Company; (vii) a breach by you of Section 3(a) or Section 8 of this Agreement, or of any written Company policy, practice or procedure relating to the protection of Confidential Information or to the non-use or disclosure to or on behalf of the Company of confidential or proprietary information of a third party; or (viii) a material breach by you of this Agreement (other than Section 3(a) or Section (8), which shall be governed by clause (vii) above), which breach (if curable) has remained uncured for a period of thirty (30) days following the Companys delivery of written notice to you specifying the manner in which the Agreement has been materially breached.
(b) By the Company Without Cause. The Company may terminate your employment at any time other than for Cause upon notice to you.
(c) Resignation by You Without Good Reason. You may terminate your employment at any time upon sixty (60) days notice to the Company. The Board may elect to waive such notice period or any portion thereof; but in that event, the Company shall pay you your Base Salary for that portion of the notice period so waived.
(d) Resignation by You With Good Reason. You may terminate your employment as provided below for Good Reason. For purposes of this Agreement, Good Reason shall mean (if occurring without your consent): (i) a material diminution in your duties or responsibilities; (ii) a material reduction in your Base Salary (except for salary reductions similarly affecting all senior executives of the Company); (iii) a material change in your place of business (provided, however, that travel for business purposes shall not be considered a change in your place of business for the purpose of this clause (iii)); or (iv) a material breach by the Company of this Agreement; provided that the occurrence of any of the foregoing events shall not constitute Good Reason unless (x)(1) you provide written notice of the event to the Company within ninety (90) days after it first existed; (2) the Company fails to remedy the condition within thirty (30) days after the notice; and (3) you actually terminate employment within thirty (30) days after the expiration of the Companys cure period or (y) if the event follows an event or action by you that would constitute Cause (as defined herein) for termination.
(e) Death and Disability. Your employment hereunder shall automatically terminate in the event of your death during employment and may be terminated due to your disability. In the event that your employment is terminated due to your disability, you will be entitled to the benefits provided under the Companys disability plan or program, subject to the terms of such plan or program and generally applicable Company policies, as the same may be in effect from time to time, and any other restrictions or limitations imposed by law.
5. Other Matters Related to Termination.
(a) Final Compensation. In the event of termination of your employment with the Company, howsoever occurring, the Company shall pay you (i) your Base Salary for the final payroll period of your employment, through the date your employment terminates; (ii) any vacation time earned but not used as of the date your employment terminates; (iii) reimbursement for business expenses incurred by you but not yet paid to you as of the date your employment terminates; provided that you submit all expenses and supporting documentation required within thirty (30) days of the date your employment terminates, and provided further that such expenses are reimbursable under Company policies as then in effect; and (iv) any amounts or benefits due to you under any benefit plan, program or arrangement of the Company in accordance with the terms of
34 Maple Street Milford, MA 01757-3696 U.S.A. [T] 508.478.2000 [T] 1.800.252.4752 [F] 508.872.1990 [W] www.waters.com
such plan, program or arrangement (all of the foregoing, Final Compensation). The Final Compensation shall be paid within thirty (30) days following the termination of your employment. In addition, except if your employment is terminated by the Company for Cause or you resign without Good Reason, the Company shall pay you any unpaid annual incentive compensation under the AIP for the fiscal year preceding the year your employment terminates (the Prior Years Bonus), payable when such annual incentive compensation is paid to active employees of the Company as described in Section 2(b) above. The Prior Years Bonus shall be paid to you only if you enter into a general release of claims in the form provided by the Company that contains non-competition, non-solicitation and other restrictive covenants substantially similar to those contained in this Agreement (the Release) within a period of time not to exceed forty-five (45) days from the date of termination of your employment and you do not revoke the Release.
(b) Severance Payments. In the event of a termination of your employment pursuant to Sections 4(b) or 4(d) above, subject to the Change in Control Agreement (as defined below), the Company will pay you, in addition to Final Compensation, (i) an amount equal to the sum of (x) your Base Salary and (y) your target annual incentive compensation opportunity for the year in which such termination occurs, which amount shall be payable in substantially equal installments during the twelve (12) -month period following the date of termination of your employment (the Severance Payments); and (ii) in a lump sum, an amount equal to the amount the Company would have paid in premiums under the life, accident, health and dental insurance plans of the Company in which you and your dependents were participating immediately prior to the termination of your employment for the twelve (12) -month period following the date of termination of your employment, with such lump sum amount payable pursuant to this Section 5(b)(ii) to be determined based on the premium rates in effect at the time of the termination of your employment (the Health Payment).
(c) Conditions to and Timing of Severance Payments. Notwithstanding any other provision of this Agreement to the contrary, the Severance Payments and the Health Payment shall be paid or provided to you only if you enter into the Release within a period of time not to exceed forty-five (45) days from the date of termination of your employment and you do not revoke the Release. Any Severance Payments to which you are entitled will be provided in the form of salary continuation, payable in accordance with the normal payroll practices of the Company. The Health Payment will be paid in a lump sum. Except as provided in Section 9(a) of this Agreement, the first payment of the Severance Payments and the Health Payment will be made on the Companys next regular payday following the date the Release becomes effective, but no later than the date that is sixty (60) days following the date your employment terminates, with the first payment of the Severance Payments being retroactive to the date of termination of your employment. Notwithstanding the foregoing, if the date your employment terminates occurs in one taxable year and the date that is sixty (60) days following such termination date occurs in a second taxable year, to the extent required by Section 409A of the Internal Revenue Code, as amended and the regulations and guidance promulgated thereunder (Section 409A), such payment shall not be made prior to the first day of the second taxable year. For the avoidance of doubt, if you do not execute the Release within the period specified in this Section 5(c) or if you revoke the executed Release within the time period permitted by law, you will not be entitled to any payments or benefits set forth in this Agreement, and neither the Company nor any of its Affiliates will have any further obligations to you under this Agreement or otherwise. Further the obligation of the Company to make payments to you under Section 5(b), and your right to retain the same, are conditioned upon your continued compliance with Section 3 of this Agreement.
6. Termination of Employment in Connection with a Change of Control. Concurrently with the execution of this Agreement, you are entering into a Change of Control/Severance Agreement (the Change of Control Agreement). Any rights you may have to payments or benefits upon certain terminations of your employment in connection with a change of control of the Company will be as set forth in the Change of Control Agreement. In no event will you be entitled to severance benefits under both this Agreement and the Change of Control Agreement.
34 Maple Street Milford, MA 01757-3696 U.S.A. [T] 508.478.2000 [T] 1.800.252.4752 [F] 508.872.1990 [W] www.waters.com
7. Employment At-Will. This Agreement is not intended to constitute a contract of employment for a definite term. Your employment with the Company will be at-will. This means that if you accept this offer both you and the Company will retain the right to terminate our employment relationship at any time, subject to the terms of this Agreement.
8. Conflicting Agreements. You hereby represent and warrant that your signing of this Agreement and the performance of your obligations under it will not breach or be in conflict with any other agreement to which you are a party or are bound, and that you are not now subject to any covenants against competition or similar covenants or any court order that could affect the performance of your obligations under this Agreement. You agree that you will not disclose to or use on behalf of the Company or its Affiliates any confidential or proprietary information of a third party without the prior written consent of an authorized representative of such party.
9. Timing of Payments and Section 409A.
(a) Notwithstanding anything to the contrary in this Agreement, if at the time your employment terminates, you are a specified employee, as defined below, any and all amounts payable under this Agreement on account of such separation from service that would (but for this provision) be payable within six (6) months following the date of termination, shall instead be paid on the next business day following the expiration of such six (6)-month period or, if earlier, upon your death, except (A) to the extent of amounts that do not constitute a deferral of compensation within the meaning of Treasury regulation Section 1.409A-1(b) (including without limitation by reason of the safe harbor set forth in Section 1.409A-1(b)(9)(iii), as determined by the Company in its reasonable good faith discretion); (B) benefits which qualify as excepted welfare benefits pursuant to Treasury regulation Section 1.409A-1(a)(5); or (C) other amounts or benefits that are not subject to the requirements of Section 409A.
(b) For purposes of this Agreement, all references to termination of employment and correlative phrases shall be construed to require a separation from service (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein), and the term specified employee means an individual determined by the Company to be a specified employee under Treasury regulation Section 1.409A-1(i).
(c) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.
(d) It is the intent of the parties hereto that the payments and benefits under this Agreement be exempt from or comply with Section 409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted in accordance therewith. In no event, however, shall the Company have any liability relating to the failure or alleged failure of any payment or benefit under this Agreement to comply with, or be exempt from, the requirements of Section 409A.
10. Withholding. All payments made by the Company under this Agreement shall be reduced by any tax or other amounts required to be withheld by the Company under applicable law.
34 Maple Street Milford, MA 01757-3696 U.S.A. [T] 508.478.2000 [T] 1.800.252.4752 [F] 508.872.1990 [W] www.waters.com
11. Recoupment. The Company may recover amounts paid to you hereunder or under any other plan or program of, or agreement or arrangement with, the Company, and any gain in respect of any equity awards granted to you, in accordance with any applicable Company clawback or recoupment policy that is generally applicable to the Companys other senior executives, as such policy may be amended and in effect from time to time, or as otherwise required by applicable law or applicable stock exchange listing standards, including, without limitation, Section 10D of the Securities Exchange Act of 1934, as amended.
12. Assignment. Neither you nor the Company may make any assignment of this Agreement or any interest in it, by operation of law or otherwise, without the prior written consent of the other; provided, however, the Company may assign its rights and obligations under this Agreement without your consent to an entity with which the Company shall hereafter effect a reorganization, consolidate with, or merge into or to which it transfers all or substantially all of its properties or assets. This Agreement shall inure to the benefit of and be binding upon you and the Company, and each of your and the Companys respective successors, executors, administrators, heirs and permitted assigns.
13. Severability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
14. Miscellaneous. This Agreement, together with the Change of Control Agreement, set forth the entire agreement between you and the Company, and replace all prior and contemporaneous communications, agreements and understandings, written or oral, with respect to the terms and conditions of your employment. This Agreement may not be modified or amended, and no breach shall be deemed to be waived, unless agreed to in writing by you and an expressly authorized representative of the Board. The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. Provisions of this Agreement shall survive any termination or expiration hereof or any termination of your employment if so provided in this Agreement or necessary or desirable to accomplish the purpose of other surviving provisions. This is a Commonwealth of Massachusetts contract and shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to any conflict of laws principles that would result in the application of the laws of any other jurisdiction, except that any equity-based awards granted to you shall be governed by and construed in accordance with the governing law provisions set forth in the EIP or the agreements evidencing such awards. You and the Company agree to submit to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts in connection with any dispute arising out of this Agreement or your employment with the Company; provided, however, any suit, action or proceeding brought by you or against you in connection with the enforcement of Section 3(e)(i) shall be brought in Suffolk county, Massachusetts, and the superior court or the business litigation session of the superior court shall have exclusive jurisdiction.
15. Notices. Any notices provided for in this Agreement shall be in writing and shall be effective when delivered in person or deposited in the United States mail, postage prepaid, and addressed to you at your last known address on the books of the Company or, in the case of the Company, to it at its principal place of business, attention of the Chair of the Board, or to such other address as either party may specify by notice to the other actually received.
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16. Counsel; Review Period. You acknowledge that the Company provided you with this Agreement (in draft form) by the earlier of (i) the date of a formal offer of employment from the Company or (ii) ten (10) business days before the Start Date. You acknowledge that you have been and are hereby advised of your right to consult an attorney before signing this Agreement.
17. No Mitigation or Offset. You shall not be required, as a condition of receiving any payments or benefits under this Agreement, to seek or obtain any other employment after termination of your employment hereunder or to take any steps to reduce the amount of any payment or benefit described in this Agreement. Further, the amount of any payment or benefit provided in this Agreement shall not be reduced by any compensation earned by you as a result of any employment by another employer, subject to the covenants contained in Section 3 hereof.
18. Indemnification; D&O Insurance. You shall be entitled to indemnification in respect of your position as an officer of the Company to the maximum extent permitted by the by-laws and charter of the Company, in each case, as in effect from time to time. You shall be entitled to coverage under the directors and officers indemnification insurance policy maintained by the Company as in effect from time to time with respect to acts undertaken by you in connection with your employment by the Company in accordance with the terms of such insurance policy.
If the foregoing is acceptable to you, please sign this letter in the space provided and return it to me. If you do accept as provided, this Agreement will take effect as a binding agreement between you and the Company as of the Start Date.
Sincerely yours, | ||
Waters Corporation | ||
By: | /s/ Udit Batra | |
Udit Batra |
||
President and Chief Executive Officer |
Accepted and Agreed: | ||
/s/ Amol Chaubal | ||
Amol Chaubal |
||
Date: |
16 April 2021 |
34 Maple Street Milford, MA 01757-3696 U.S.A. [T] 508.478.2000 [T] 1.800.252.4752 [F] 508.872.1990 [W] www.waters.com
Exhibit 10.3
CHANGE OF CONTROL/SEVERANCE AGREEMENT
This CHANGE OF CONTROL/SEVERANCE AGREEMENT (this Agreement), dated as of April 16, 2021, is made by and between Waters Corporation (together with all subsidiaries or affiliates hereinafter referred to as the
Company) and Amol Chaubal (the Executive).
WHEREAS, the Executive has been hired as Senior Vice President and Chief Financial Officer of the Company and is expected to make major contributions to the Company; and
WHEREAS, the Company desires continuity of management; and
WHEREAS, the Executive is willing to render services to the Company subject to the conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Executive agree as follows:
1. Termination prior to a Change of Control. If, within nine (9) months prior to a Change of Control (as such term is defined in Section 3(c) below) and subsequent to the commencement of substantive discussions that ultimately result in the Change of Control, but prior to such Change of Control, the Company terminates the Executives employment with the Company for a reason other than Cause (as such term is defined in the Employment Letter Agreement, dated as of [], 2021, between the Executive and the Company (the Employment Letter)), death or Disability (as such term is defined in Section 3(d) below), or the Executive resigns for Good Reason (as such term is defined in the Employment Letter), the Company shall have paid or shall pay, as applicable, to the Executive the Final Compensation (as such term is defined in the Employment Letter), the Prior Years Bonus and the Health Payment (as such term is defined in the Employment Letter) in accordance with the terms of the Employment Letter, and, subject to the Executives satisfaction of the Release Condition (as such term is defined in Section 3 below):
(a) Cash Payment. (i) Continue to pay to the Executive the Severance Payments (as such term is defined in the Employment Letter) in accordance with the terms of the Employment Letter, and (ii) upon a Change of Control, pay to the Executive a lump sum amount, following the Change of Control in the time period set forth in Section 3, equal to amount by which (A) the sum of (i) twenty-four (24) times his monthly base salary (at the highest monthly base salary rate in effect for the Executive in the twelve (12) month period prior to the termination of his employment) and (ii) an amount equal to the amount payable pursuant to the immediately preceding clause (i) times the greater of (x) his target bonus percentage under the Companys Management Incentive Plan or any successor plan for the year in which the termination of the Executives employment occurs or (y) his bonus percentage theretofore accrued thereunder for that year (based on actual performance, as determined in good faith by the Compensation Committee of the Board of Directors of the Company (or its successor) (the Committee)) exceeds (B) the aggregate amount of the Severance Payments; and
(b) Benefits. Pay to the Executive a lump sum amount, following a Change of Control in the time period set forth in Section 3, equal to the amount by which (A) the Company would have paid in premiums under the life, accident, health and dental insurance plans of the Company in which the Executive and his dependents were participating immediately prior to the termination of his employment for the twenty-four (24) month period following the date of the Change of Control, with such lump sum amount payable pursuant to this Section 1(b) to be determined based on the premium rates in effect at the time of the termination of the Executives employment exceeds (B) the Health Payment; and
(c) Equity Arrangements. In the event of a termination of employment described in this Section 1, and notwithstanding any contrary provisions of the 2020 Equity Incentive Plan (or any plans that may become the successors to such plan) and any equity incentive agreements (other than performance stock units or any other performance-based awards, as provided for below) entered into between the Company and the Executive pursuant to such plan or plans or otherwise, cause any such outstanding equity awards that are unvested or unexercisable and held by the Executive on the date of such termination of employment to remain outstanding (but not beyond the original expiration dates of such awards that are stock options or stock appreciation rights and such awards shall not otherwise vest or become exercisable except as provided herein) and, subject to a Change of Control occurring within nine (9) months following such date of such termination, to vest or become exercisable, as applicable, upon such Change of Control. To the extent a Change of Control does not occur within such nine (9) -month period, all such equity awards shall terminate at the end of such period. The performance stock units or other performance-based awards that the Executive holds, if any, shall be governed by the applicable award agreement and the 2020 Equity Incentive Plan (or any plans that may become the successors to such plan); and
(d) Qualified Plan Arrangements. On the Change of Control, cause any unvested portion of any qualified or non-qualified capital accumulation benefits granted to the Executive under the Waters Investment Plan, Waters 401(k) Restoration Plan, and the Waters Health Care Reimbursement Plan for Retirees (or any plans that may become the successors to such plans), as applicable, to become immediately vested (subject to applicable law);
provided, however, that any amounts and benefits set forth in this Section 1 shall be reduced by any and all other severance or other amounts or benefits paid or payable to the Executive as a result of the termination of his employment under any plan, program or agreement entered into with, or sponsored or maintained by, the Company.
(e) No Duplication of Benefits. In no event shall the Executive be entitled to duplication of severance amounts or benefits under this Agreement and the Employment Letter. Amounts that are paid under the Employment Letter and referenced herein shall not again be paid under this Agreement.
2. Termination Following a Change of Control.
If, at any time during a period commencing with a Change of Control and ending eighteen (18) months after such Change of Control, the Company terminates the Executives employment for a reason other than Cause, death, or Disability or the Executive terminates employment with the Company for Good Reason, the Company shall pay to the Executive the Final Compensation and the Prior Years Bonus in accordance with the terms of the Employment Letter, and, subject to the Executives satisfaction of the Release Condition (as such term is defined in Section 3 below):
(a) Cash Payment. Pay to the Executive a lump sum amount, within the time period set forth in Section 3, equal to the sum of (i) twenty-four (24) times his monthly base salary (at the highest monthly base salary rate in effect for the Executive in the twelve (12) month period prior to the termination of his employment) and (ii) an amount equal to the amount payable pursuant to the immediately preceding clause (i) times the greater of (x) his target bonus percentage under the Companys Management Incentive Plan or any successor plan for the year in which the termination of the Executives employment occurs or (y) his bonus percentage theretofore accrued thereunder for that year (based on actual performance, as determined in good faith by the Committee); and
(b) Benefits. Pay to the Executive a lump sum amount, following the Executives termination of employment in the time period set forth in Section 3, equal to the amount the Company would have paid in premiums under the life, accident, health and dental insurance plans of the Company in which the Executive and his dependents were participating immediately prior to the termination of his employment for the twenty-four (24) month period following the date of the termination of the Executives employment, with such lump sum amount payable pursuant to this Section 2(b) to be determined based on the premium rates in effect at the time of the termination of the Executives employment; and
(c) Equity Arrangements. In the event of a termination of employment described in this Section 2 and notwithstanding any contrary provisions of the 2020 Equity Incentive Plan (or any plans that may become the successors to such plan) and any equity incentive agreements (other than performance stock units or any other performance-based awards, as provided for below) entered into between the Company and the Executive pursuant to such plan or plans or otherwise, cause any such outstanding equity awards that are unvested or unexercisable and held by the Executive on the date of such termination of employment to vest or become exercisable, as applicable, upon such termination. The performance stock units or other performance-based awards that the Executive holds, if any, shall be governed by the applicable award agreement and the 2020 Equity Incentive Plan (or any plans that may become the successors to such plan); and
(d) Qualified Plan Arrangements. Cause any unvested portion of any qualified and non-qualified capital accumulation benefits granted to the Executive under the Waters Investment Plan, Waters 401(k) Restoration Plan, and the Waters Health Care Reimbursement Plan for Retirees (or any plans that may become the successors to such plans), as applicable, to become immediately vested (subject to applicable law);
provided, however, that any amounts and benefits set forth in this Section 2 shall be reduced by any and all other severance or other amounts or benefits paid or payable to the Executive as a result of the termination of his employment under any plan, program or agreement entered into with, or sponsored or maintained by, the Company. For the avoidance of doubt, upon a termination of employment that meets the conditions set forth in Section 2 the Executive shall only be entitled to receive the payments and benefits under this Section 2 and shall not be entitled to receive any payments or benefits under the Employment Letter.
3. General.
(a) Release. Notwithstanding any other provision of this Agreement to the contrary, benefits shall be payable under this Agreement only if the Executive enters into a release of claims (the Release) substantially in the form attached hereto as Exhibit A, with such changes only as may be necessary to comply with applicable law at the time of termination of the Executives employment, within a period of time not to exceed forty-five (45) days from the date of termination of the Executives employment and the Executive does not revoke such Release (the Release Condition). Except as otherwise provided in Section 3(f) of this Agreement, any payment under this Agreement to be made in a lump sum shall be paid as soon as administratively practicable following the date the Release becomes effective, but not later than the date that is sixty (60) days following the date the Executives employment terminates. Notwithstanding the foregoing, if the date the Executives employment terminates occurs in one taxable year and the date that is sixty (60) days following such termination date occurs in a second taxable year, to the extent required by Section 409A of the Internal Revenue Code, as amended (Section 409A), such lump sum payment shall not be made prior to the first day of the second taxable year. For the avoidance of doubt, if the Executive does not execute the Release within the period specified in this Section 3(a) or if the Executive revokes the executed Release within the time period permitted by law, the Executive will not be entitled to any payments or benefits (including the accelerated vesting of equity and equity-based awards) set forth in this Agreement, any equity and equity-based awards that vested on account of such termination as provided for in this Agreement shall be cancelled with no consideration due to the Executive, and neither the Company nor any of its affiliates will have any further obligations to the Executive under this Agreement or otherwise.
(b) Termination for Cause. In the event the Executives employment with the Company is terminated by the Company for Cause, the Executives employment terminates due to death or Disability, or the Executive terminates his employment with the Company other than during the specific time periods set forth in Section 1 or 2, as applicable, or for any reason other than Good Reason, the Executive shall not be entitled to the severance benefits or other considerations described herein by virtue of this Agreement.
(c) Definition of Change of Control. For purposes of this Agreement, Change of Control shall mean the occurrence of any of the following, provided such occurrence is also a change in the ownership or effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company, in each
case as those terms are defined in Treasury Regulation Section 1.409A-3(i)(5)(v), (i) the closing of a merger, consolidation, liquidation or reorganization of the Company into or with another company or other legal person, after which merger, consolidation, liquidation or reorganization the capital stock of the Company outstanding prior to consummation of the transaction is not converted into or exchanged for or does not represent more than 50% of the aggregate voting power of the surviving or resulting entity; (ii) the direct or indirect acquisition by any person (as the term person is used in Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended) of more than 50% of the voting capital stock of the Company, in a single or series of related transactions; or (iii) the sale, exchange, or transfer of all or substantially all of the Companys assets (other than a sale, exchange, or transfer to one or more entities where the stockholders of the Company immediately before such sale, exchange or transfer retain, directly or indirectly, at least a majority of the beneficial interest in the voting stock of the entities to which the assets were transferred).
(d) Definition of Disability. For purposes of this Agreement, Disability means an independent medical doctor (selected by the Companys health or disability insurer) has certified that the Executive has, for six (6) months consecutive or nonconsecutive in any twelve (12) month period, been disabled in a manner that seriously interferes with his ability to perform his responsibilities as an employee of the Company. Any refusal by the Executive to submit to a medical examination for the purpose of certifying disability shall be deemed to constitute conclusive evidence of the Executives Disability.
(e) No Mitigation or Offset. The Executive shall not be required, as a condition of receiving any payments or benefits under this Agreement, to seek or obtain any other employment after termination of employment hereunder or to take any steps to reduce the amount of any payment or benefit described in this Agreement. Further, the amount of any payment or benefit provided in this Agreement shall not be reduced by any compensation earned by the Executive as a result of any employment by another employer.
(f) Timing of Payments and Section 409A.
(i) Notwithstanding anything to the contrary in this Agreement, if at the time the Executives employment terminates, the Executive is a specified employee, as defined below, any and all amounts payable under this Agreement on account of such separation from service that would (but for this provision) be payable within six (6) months following the date of termination, shall instead be paid on the next business day following the expiration of such six (6) -month period or, if earlier, upon the Executives death; except (A) to the extent of amounts that do not constitute a deferral of compensation within the meaning of Treasury regulation Section 1.409A-1(b) (including without limitation by reason of the safe harbor set forth in Section 1.409A-1(b)(9)(iii), as determined by the Company in its reasonable good faith discretion); (B) benefits which qualify as excepted welfare benefits pursuant to Treasury regulation Section 1.409A-1(a)(5); or (C) other amounts or benefits that are not subject to the requirements of Section 409A.
(ii) For purposes of this Agreement, all references to termination of employment and correlative phrases shall be construed to require a separation from service (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein), and the term specified employee means an individual determined by the Company to be a specified employee under Treasury regulation Section 1.409A-1(i).
(iii) Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments.
(iv) It is the intent of the parties hereto that the payments under this Agreement comply with (or be exempt from) Section 409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted in accordance therewith. In no event, however, shall the Company have any liability relating to the failure or alleged failure of any payment or benefit under this Agreement to comply with, or be exempt from, the requirements of Section 409A.
(g) Binding Effect. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the Company and any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) of the Company. The Company shall require any such successor to assume this Agreement expressly and to be bound by the provisions of this Agreement as if such successor were the Company and for purposes of this Agreement, any such successor of the Company shall be deemed to be the Company for all purposes.
(h) No Employment Agreement; Effect on Other Agreements. Nothing in this Agreement shall create any obligation on the part of the Company or any other person to continue the employment of the Executive, and nothing herein shall affect the Executives obligations under any non-competition, confidentiality, option or similar agreement between the Company and the Executive currently in effect or which may be entered into in the future.
(i) Withholding. All payments required to be made by the Company hereunder to the Executive shall be subject to the withholding of such amounts, if any, relating to tax and other payroll deductions as the Company may reasonably determine it must withhold pursuant to any applicable law or regulation.
(j) Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled exclusively by single-arbitrator arbitration in Boston, Massachusetts in accordance with the Employment Arbitration Rules of the American Arbitration Association then in effect, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party shall bear the cost of its or his, respectively, own legal fees in connection with such dispute.
(k) Governing Law; Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, except that any equity or equity-based awards granted to the Executive
shall be governed by and construed in accordance with the governing law provisions set forth in the agreements evidencing such awards. This Agreement constitutes the entire Agreement between the Executive and the Company concerning the subject matter hereof and supersedes any prior negotiations, understandings, or agreements concerning the subject matter hereof, whether oral or written, and may be amended or rescinded only upon the written consent of the Company and the Executive. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions of this Agreement and this Agreement shall be construed and reformed to the fullest extent possible. The Executive may not assign any of his rights or obligations under this Agreement; the rights and obligations of the Company under this Agreement shall inure to the benefit of, and shall be binding upon, the successors and assigns of the Company.
(l) Section 280G.
(i) If any payment or benefit (including payments and benefits pursuant to this Agreement) that Executive would receive from the Company, or otherwise, contingent on an event covered by Section 280G(b)(2)(A)(i) of the Code (collectively, the Transaction Payment) would (i) constitute a parachute payment within the meaning of Section 280G of the Code, and (ii) but for this Section 3(m), be subject to the excise tax imposed by Section 4999 of the Code (the Excise Tax), then the Executive shall be entitled to receive, whichever of the following that results in the greater amount payable to him on an after-tax basis: (1) payment in full of the entire amount of the Transaction Payment (a Full Payment), or (2) payment of only a part of the Transaction Payment so that the Executive receives the largest payment possible without the imposition of the Excise Tax (a Reduced Payment).
For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company shall cause to be taken into account all applicable federal, state and local income and employment taxes and the Excise Tax. If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to Executive as determined in this paragraph, to the extent permitted by Section 409A. If more than one method of reduction will result in the same economic benefit, the portions of the Payment shall be reduced pro rata, to the extent permitted by Section 409A.
(ii) The Company shall engage an independent registered public accounting firm to make all determinations required to be made under this Section 3(m), and shall bear all reasonable expenses with respect thereto. The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and the Executive. If the independent registered public accounting firm determines that no Excise Tax is payable with respect to the Transaction Payment (whether or not by reason of payment to the Executive of a Reduced Payment), it shall furnish the Company and Executive with detailed supporting calculations of its determination that no Excise Tax will be imposed with respect to the Transaction Payment. All good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and the Executive.
(m) Counterparts. This Agreement may be executed in separate counterparts (including by means of telecopied signature pages), and by different parties on separate counterparts each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.
WATERS CORPORATION | ||||
By: |
/s/ Udit Batra |
|||
Udit Batra | ||||
President and Chief Executive Officer |
THE EXECUTIVE | ||||
By: |
/s/ Amol Chaubal |
|||
Amol Chaubal |
Exhibit 10.4
April 16, 2021
VIA EMAIL
Mr. Michael C. Harrington
Michael_Harrington@waters.com
Dear Michael:
This letter agreement (this Agreement) confirms the terms of the remainder of your employment with Waters Corporation (the Company) and your engagement as a consultant by the Company, as follows:
1. Transition Period.
(a) Transition. Subject to earlier termination as provided herein, from the date hereof through April 30, 2021 (the Transition Date), you will continue to serve as Senior Vice President, Global Markets and as an executive officer of the Company and a member of the Executive Committee. On the Transition Date, you will be deemed to resign from any and all: (i) officer positions you hold with the Company or any of its Affiliates (as defined below); (ii) memberships you hold on any boards of directors, boards of managers or other governing boards or bodies of the Company or any of its Affiliates; and (iii) memberships you hold on any of the committees of any such boards or bodies. For purposes of this Agreement, Affiliates means all persons and entities directly or indirectly controlling, controlled by or under common control with the Company. Subject to earlier termination as provided herein, from the Transition Date until July 2, 2021 (the Separation Date), you will be employed by the Company, on a full-time basis, as a non-executive senior advisor and shall not, for the avoidance of doubt, be an executive officer of the Company or a member of the Executive Committee. The period beginning on the Transition Date and ending on the Separation Date is hereinafter referred to as the Transition Period. Subject to earlier termination as provided for herein, from July 3, 2021 until June 30, 2022 (the Consulting Period), you will serve as a non-employee consultant to the Company on the terms and conditions set forth in this Agreement.
(b) Duties and Responsibilities. Prior to the Transition Date, you will continue to perform your current duties. During the Transition Period, you will perform such duties as may be reasonably assigned to you from time to time by the President and Chief Executive Officer of the Company (the CEO) or his designee, including, without limitation, using best efforts in providing transition assistance as may be reasonably requested by the CEO or his designee. You will at all times continue to devote your best professional efforts to the Company and use your best efforts to abide by all Company policies and procedures as are in effect from time to time.
34 Maple Street Milford, MA 01757-3696 U.S.A. [T] 508.478.2000 [T] 1.800.252.4752 [F] 508.872.1990 [W] |
www.waters.com |
(c) Compensation, Benefits and Reimbursements. From the date hereof until the Separation Date, you will continue to receive your base salary, payable at the rate in effect as of the date hereof ($468,000 per year) and in accordance with the Companys regular payroll practices, and to participate in all employee benefit plans and programs of the Company in accordance with the terms of those plans and programs, except that you will not be eligible to participate in the Companys annual bonus plan for fiscal year 2021 and, in lieu of such bonus, will be eligible to receive the Designated Bonus (as defined below) on the terms and conditions provided for herein. In addition, from the date hereof until the Separation Date, the Company will pay or reimburse you, in accordance with the Companys reimbursements procedures and practices in effect from time to time, for all reasonable business expenses incurred by you in the performance of your duties and responsibilities to the Company, provided that you submit on a timely basis such documentation and substantiation of those expenses as the Company may require from time to time.
(d) Equity Awards. You acknowledge and agree that Exhibit A attached to this Agreement sets forth a true and complete schedule of all stock options, restricted stock units and performance stock units previously granted by the Company to you that remain outstanding and unexercised, if applicable, as of the date hereof (collectively, the Equity Awards). The Equity Awards will continue to vest in accordance with their respective terms, as set forth in the Companys 2012 Equity Incentive Plan or 2020 Equity Incentive Plan, as applicable, and the award agreements between you and the Company thereunder (collectively, the Equity Documents) from the date hereof until the Separation Date.
2. Employment Termination.
(a) Resignation. On the Separation Date, you will be deemed to resign your position as senior advisor and shall terminate employment with the Company.
(b) Final Compensation. You will receive, on or as soon as reasonably practicable following the Separation Date, (i) your base salary for the final payroll period of your employment, through the Separation Date; (ii) compensation at the rate of your base salary for any unused vacation time in accordance with the Companys policies; and (iii) reimbursement for business expenses incurred by you but not yet paid to you as of the Separation Date, in accordance with the Companys reimbursements procedures and practices in effect from time to time; provided that you submit all expenses and supporting documentation required within sixty (60) days of the Separation Date.
(c) Treatment of Equity Awards. Your termination of employment on the Separation Date will be treated as a retirement for purposes of the Equity Awards (to the extent applicable). Without limiting the foregoing, and in each case in accordance with the terms of the applicable Equity Documents, (i) the Equity Awards that are unvested performance stock units shall remain outstanding and eligible to be earned based on performance for the applicable performance period and, to the extent earned, shall vest on a prorated basis based on the portion of the performance period during which you were employed through the Separation Date and (ii) the Equity Awards that are vested stock options shall remain outstanding and eligible to be exercised until the one-year anniversary of the Separation Date (or, if earlier, the expiration date of such stock options)
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and, to the extent not exercised on or prior to such one-year anniversary (or such earlier date), shall be forfeited for no consideration payable to you. Any Equity Awards not described in preceding sentence, to the extent not vested as of the Separation Date, shall be forfeited on the Separation Date for no consideration payable to you.
(d) Designated Bonus. The Company will pay you a one-time bonus of $225,000 (the Designated Bonus) as soon as reasonably practicable following the Separation Date, but in no event more than sixty (60) days following the end of the Separation Date. You acknowledge and understand that the Designated Bonus is being paid to you as consideration for the restrictive covenants included in this Agreement.
(e) Employee Benefits. Except for any right you may have to continue participation in the Companys group health, dental and vision plans under applicable law, which will be communicated to you under separate cover, or as set forth in this Agreement, your active participation in all employee benefit plans and programs of the Company will terminate as of the Separation Date in accordance with the terms of those plans and programs. Following the end of any such continuation coverage period, you may participate in the Companys retiree health continuation program, a copy of which has been provided to you, or such other Company health, dental and vision insurance programs for which you are eligible in accordance with the terms of the applicable program. Nothing in this Agreement will affect any vested rights you may have under the Companys benefit plans and programs, including, for the avoidance of doubt, the Companys 401(k) Restoration Plan.
(f) No Further Compensation. You acknowledge and agree that the payments and benefits described in Sections 2(b) and 2(e) are in complete satisfaction of any and all compensation or benefits due to you from the Company or any of its Affiliates, whether for services provided or otherwise, through the Separation Date, and that, except as expressly provided under this Agreement, no further compensation or benefits are owed or will be paid to you. For the avoidance of doubt, from and after the Separation Date, you will not be eligible to receive any severance payments and benefits under the Change of Control/Severance Agreement between you and the Company, dated March 22, 2017 (the Change of Control Agreement).
(g) Release of Claims. In consideration of your continued service to the Company following the Separation Date as contemplated hereunder, the payments and benefits set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge, you agree to execute and return to the Company a release of claims in the form attached as Exhibit B to this Agreement (a Release) within the time period specified therein (but in no event prior to the Separation Date). The execution and non-revocation of such Release is a condition to the receipt of the benefits provided under Sections 2(c), 2(d) and 3 of this Agreement.
3. Consulting Engagement.
(a) Services. During the Consulting Period, you will be engaged to provide consulting services to the Company and its Affiliates relating to the organizational transition of employees, customers and business processes and such other services as may from time to time be
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requested by the Company and its Affiliates. Your consulting services shall be provided remotely or at the Companys offices. During the Consulting Period you will report to the CEO or such other person or persons designated by the Company. You and the Company anticipate that during the Consulting Period, you will devote not more than eight (8) hours per week to the performance of the consulting services contemplated by this Agreement. Based on such level of services, it is anticipated that you will experience a separation from service (as defined in Section 1.409A-1(h) of the Treasury Regulations) from the Company on the Separation Date.
(b) Relationship of the Parties. You and the Company expressly agree that, in providing services to the Company under this Section 3 during the Consulting Period, you will be an independent contractor and will not be an employee or agent of the Company or any of its Affiliates. You agree that you will have no right to make any commitments on behalf of the Company or any of its Affiliates without the express written consent of an authorized officer of the Company or its applicable Affiliate.
(c) Services for Others. During the Consulting Period, you may choose to also provide services for others, provided that such services do not (i) give rise to a conflict of interest or otherwise interfere with your obligations to the Company or any of its Affiliates or (ii) violate the Restrictive Covenants (as defined below).
(d) Compensation. In consideration of the services that you provide to the Company under this Agreement during the Consulting Period, the Company will pay you a consulting fee at the rate of $10,000 per month during the Consulting Period, prorated for partial months. Any consulting fee owed to you will be paid on a monthly basis in arrears.
(e) Taxes, Insurance and Benefits. You acknowledge and agree that, as an independent contractor during the Consulting Period, you will be solely responsible for all insurance and for the payment of all federal, state and local income taxes, Social Security and Medicare taxes and other legally required payments on any amounts received from the Company. You also acknowledge and agree that, during the Consulting Period, neither you nor any individual claiming through you will be eligible to actively participate in or receive benefits under any of the employee benefit plans, programs and arrangements maintained by the Company or any of its Affiliates, other than as expressly provided in this Agreement.
4. Early Termination. It is expected that your employment with the Company will continue until the Separation Date and that your consulting services will continue for the duration of the Consulting Period. Notwithstanding the foregoing or anything to the contrary in this Agreement, either you or the Company may at any time terminate your employment or service, as applicable, upon thirty (30) days written notice to other (or immediately upon notice to you, in the event your employment or service, as applicable, is terminated by the Company for Cause (as defined below)) and, in the event such termination of employment or service occurs prior to the end of the Consulting Period, you will receive the accrued and unpaid compensation and benefits required to be paid to you under applicable law and the terms of any applicable employee benefit plans and programs of the Company, and otherwise shall only be entitled to the compensation and benefits set forth in this Section 4.
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(a) Termination of Employment without Cause. In the event your employment is terminated by the Company without Cause prior to the Separation Date, subject to your execution and non-revocation of a Release within the time period specified therein and your compliance with the Restrictive Covenants, (i) you will continue to be paid your base salary at the rate in effect as of the date hereof ($468,000 per year) in accordance with the Companys regular payroll practices beginning on the first payroll date following the date the Release becomes effective (with the first such payment to include all amounts that would have otherwise been paid following such termination of employment) through the Separation Date, (ii) such termination of employment shall be treated as a retirement for purposes of the Equity Awards (to the extent applicable), and (iii) you shall remain eligible to receive the Designated Bonus, which shall be paid at the time set forth in Section 2(d) above.
(b) Other Termination of Employment or Service. Except as set forth in Section 4(a) above, in the event of a termination of your employment or service for any reason, you shall not be entitled to receive any additional compensation or benefits under this Agreement or otherwise.
(c) Deemed Resignations. In the event of any termination of your employment for any reason prior to the Separation Date, you will be deemed to resign from any and all: (i) officer positions you hold with the Company or any of its Affiliates; (ii) memberships you hold on any boards of directors, boards of managers or other governing boards or bodies of the Company or any of its Affiliates; and (iii) memberships you hold on any of the committees of any such boards or bodies.
For purposes of this Agreement, Cause means (i) the conviction of you by a court of competent jurisdiction of, or the pleading of guilty or nolo contendere to, any felony or any crime involving moral turpitude; (ii) gross negligence, breach of fiduciary duty or material breach of any Restrictive Covenant (as defined below); (iii) you shall have willfully and continually failed to substantially perform your duties with the Company after a written demand for substantial performance is delivered by the Company, which demand specifically identifies the manner in which the Company believes that you have not substantially performed your duties pursuant to the disciplinary procedures of the Company, and such failure of substantial performance shall have continued for a period of thirty (30) days after such written demand; (iv) you have been chronically absent from work (excluding vacations, illnesses or leaves of absences); (v) the commission by you of an act of fraud, embezzlement or misappropriation against the Company; or (vi) you shall have refused, after explicit notice, to obey any lawful resolution or direction by the Board which is consistent with his or her duties as an officer of the Company and, includes your failure to execute an effective Release as required by this Agreement.
5. Withholding. Without limiting the provisions of Section 3(e) of this Agreement, the Company shall have the right to withhold from all payments made under this Agreement or otherwise paid or provided to you in respect of your employment with the Company any taxes or any other amounts required to be withheld by the Company or any of its Affiliates under applicable law, which amounts may be withheld in the discretion of the Company or any of its Affiliates from any amounts payable under this Agreement.
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6. Confidential Information and Restricted Activities. You acknowledge the importance to the Company and its Affiliates of protecting their Confidential Information (as defined below) and other legitimate business interests, including the valuable trade secrets and good will that they have developed or acquired. In consideration of your continued service to the Company, the payments and benefits set forth in this Agreement, including Sections 2(d) and 3 of this Agreement, to which you are not otherwise entitled, and other good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge, you agree that the following restrictions on your activities are reasonable and necessary to protect the legitimate interests of the Company and its Affiliates (such restrictions, together with any other confidentiality, non-solicitation, invention assignment or other restrictive covenants in favor of the Company or any of its Affiliates to you are bound, the Restrictive Covenants). For purposes of this Agreement, Person means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust or any other entity or organization, other than the Company or any of its Affiliates.
(a) Confidential Information.
(i) During the course of your employment and/or service with the Company and its Affiliates, you may learn or have learned of Confidential Information, and you may develop or have developed Confidential Information on behalf of the Company and its Affiliates. You agree that you will not use or disclose to any Person (except as required by applicable law or for the proper performance of your regular duties and responsibilities for the Company) any Confidential Information obtained by you incident to your employment and/or service with the Company or any of its Affiliates. You agree that this restriction shall continue to apply after your employment and/or service terminates, regardless of the reason for such termination. For purposes of this Agreement, Confidential Information means any and all information of the Company and its Affiliates that is not generally available to the public. Confidential Information also includes any information received by the Company or any of its Affiliates from any Person with any understanding, express or implied, that it will not be disclosed. Confidential Information does not include information that enters the public domain, other than through your breach of your obligations under this Agreement.
(ii) You understand and acknowledge that you will not be held criminally or civilly liable under any federal or state trade secret law for disclosing a trade secret in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, in each case, solely for the purpose of reporting or investigating a suspected violation of law, or for disclosing a trade secret in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Notwithstanding this immunity from liability, you may be held liable if you unlawfully access trade secrets or Confidential Information by unauthorized means. Notwithstanding the foregoing, nothing in this Agreement limits, restricts or in any other way affects your communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
(b) Protection of Documents. All documents, records and files, in any media of whatever kind and description, relating to the business, present or otherwise, of the Company or any of its Affiliates, and any copies, in whole or in part, thereof (the Documents), whether or not prepared by you, shall be the sole and exclusive property of the Company. You agree to
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safeguard all Documents and to surrender to the Company, on or before the Separation Date or at such earlier time or times as the Company or its designee may specify, all Documents then in your possession or control. You also agree to disclose to the Company, on or before the end of the Consulting Period or at such earlier time or times as the Company or its designee may specify, all passwords necessary or desirable to obtain access to, or that would assist in obtaining access to, any information which you have password protected on any computer equipment, network or system of the Company or any of its Affiliates. You further agree to surrender, on or prior to the end of the Consulting Period, or such earlier time or times as the Company or its designee may specify any cellular phone, laptop, iPad or other electronic equipment provided to you by the Company or any of its Affiliates.
(c) Restricted Activities.
(i) From the date hereof until June 30, 2022 (or, if earlier, the date that is one year following the Separation Date) such period, the Restricted Period), you shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the Company or any of its Affiliates or undertake any planning for any business that is competitive with the business of the Company or any of its Affiliates in the Restricted Area. Specifically, but without limiting the foregoing, you agree not to work or provide services, in a Restricted Position, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Person that is engaged in any business that is competitive with the business of the Company or any of its Affiliates, as conducted or in planning (provided such planning has been approved by the Board of Directors of the Company) during your service with the Company anywhere in the Restricted Area. You agree that the foregoing restrictions on your activities during and after your employment are necessary to protect the good will, Confidential Information, trade secrets and other legitimate interests of the Company and its Affiliates. For purposes of this Agreement Restricted Area means any country, city, county or other local in which the Company or any of its Affiliates provides services or has a material presence or influence during the preceding two years.
(ii) During the Restricted Period, you shall not, directly or indirectly, (a) solicit or encourage any customer, client, distributor or supplier of the Company or any of its Affiliates to terminate or diminish its relationship with them; or (b) seek to persuade any such customer, client, distributor or supplier of the Company or any of its Affiliates to conduct with anyone else any business or activity which such customer, client, advertiser, distributor or supplier conducts or could conduct with the Company or any of its Affiliates.
(iii) During the Restricted Period, you shall not, directly or indirectly, (a) hire or engage, or solicit for hiring or engagement, any employee of the Company or any of its Affiliates or seek to persuade any such employee to discontinue employment or (b) solicit or encourage any independent contractor providing services to the Company or any of its Affiliates to terminate or diminish its relationship with any of them. For the purposes of this Agreement, an employee or an independent contractor of the Company or any of its Affiliates is any person who was such at any time within the preceding twelve (12)-months.
(iv) Subject to Section 6(a)(ii) of this Agreement, you shall not at any time, directly or indirectly, disparage or criticize the Company or any of its Affiliates, or any of their respective businesses, directors, management, products or services.
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(d) Assurances. In signing this Agreement, you give the Company assurance that you have carefully read and considered all the terms and conditions of this Agreement, including the restraints imposed on you under this Section 6. You agree without reservation that these restraints are necessary for the reasonable and proper protection of the Company and its Affiliates, and that each and every one of the restraints is reasonable in respect to subject matter, length of time and geographic area. You further agree that, were you to breach any of the covenants contained in this Section 6, the damage to the Company and its Affiliates would be irreparable. You therefore agree that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by you of any of those covenants, without having to post bond. So that the Company may enjoy the full benefit of the covenants contained in this Section 6, you further agree that the Restricted Period shall be tolled, and shall not run, during the period of any breach by you of any of the covenants contained in this Section 6. You and the Company further agree that, in the event that any provision of this Section 6 is determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, that provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law. It is also agreed that each of the Companys Affiliates shall have the right to enforce all of your obligations to that Affiliate under this Agreement, including without limitation pursuant to this Section 6. Finally, no claimed breach of this Agreement or other violation of law attributed to the Company, or change in the nature or scope of your service relationship with the Company or any of its Affiliates shall operate to excuse you from the performance of your obligations under this Section 6.
7. Section 409A.
(a) This Agreement and the payments and benefits provided hereunder are intended to be exempt from, or comply with, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the Code), and shall be construed consistently with that intent. Notwithstanding the foregoing, in no event shall the Company have any liability relating to the failure or alleged failure of any payment or benefit under this Agreement to be exempt from, or comply with, the requirements of Section 409A of the Code. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments.
(b) Any reimbursement for expenses payable to you hereunder that would constitute nonqualified deferred compensation subject to Section 409A of the Code shall be subject to the following additional rules: (i) no reimbursement of any such expense shall affect your right to reimbursement of any such expense in any other taxable year; (ii) reimbursement of the expense shall be made, if at all, promptly, but not later than the end of the calendar year following the calendar year in which the expense was incurred; and (iii) the right to reimbursement shall not be subject to liquidation or exchange for any other benefit.
(c) If you are a specified employee (as defined below) at the time of your separation from service (as defined below), any payments or benefits that are payable under this Agreement or otherwise on account of your separation from service that would (but for this provision) be payable within six (6) months following the date of such separation from service, shall instead be paid on the next business day following the expiration of such six (6)-month period or, if earlier, upon your death; except (i) to the extent of amounts that do not constitute a deferral of
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compensation within the meaning of Section 1.409A-1(b) of the Treasury Regulations (including without limitation by reason of the safe harbor set forth in Section 1.409A-1(b)(9)(iii), as determined by the Company in its reasonable good faith discretion); (ii) benefits which qualify as excepted welfare benefits pursuant to Section 1.409A-1(a)(5) of the Treasury Regulations; or (iii) other amounts or benefits that are not subject to the requirements of Section 409A of the Code.
(d) For purposes of this Agreement, the term separation from service shall have the meaning set forth in Section 1.409A-1(h) of the Treasury Regulations (after giving effect to the presumptions contained therein), and the term specified employee means an individual determined by the Company to be a specified employee under Section 1.409A-1(i) of the Treasury Regulations.
8. Miscellaneous. This Agreement constitutes the entire agreement between you and the Company, and replaces all prior and contemporaneous agreements, whether written or oral, with respect to the subject matter of this Agreement and all related matters, including, without limitation, the Change of Control Agreement. This Agreement may not be amended and no breach will be deemed waived unless agreed to in a signed writing by you and an authorized officer of the Company. The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any provision of this Agreement. This is a Massachusetts contract and shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to any conflict of laws principles that would result in the application of the laws of another jurisdiction. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled exclusively by single-arbitrator arbitration in Boston, Massachusetts in accordance with the Employment Arbitration Rules of the American Arbitration Association then in effect, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party shall bear the cost of its or his or her, respectively, own legal fees in connection with such dispute. This Agreement may be executed in separate counterparts (including by electronically delivered .pdf files or copies of manually signed signature pages), each of which will be deemed to be an original and all of which taken together will constitute one and the same agreement.
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If the foregoing is acceptable to you, please sign this letter in the space provided and return it to the Company. The enclosed copy of this letter, which you should also sign and date, is for your records.
Sincerely, | ||
WATERS CORPORATION | ||
By: |
/s/ Udit Batra
|
|
Udit Batra | ||
President and Chief Executive Officer |
Accepted and agreed: |
/s/ Michael C. Harrington
|
Michael C. Harrington |
Date: 16 April 2021 |
[Signature Page to Transition Agreement]
Exhibit A
Equity Awards
Type of Equity Award |
Grant Date |
Exercise Price
per Share |
Number of
Options/RSUs/PSUs Vested as of April 16, 2021 |
Number of
Options/RSUs/PSUs Unvested as of April 16, 2021 |
||||||||||
PSU |
2/18/2021 | | | 890 | ||||||||||
PSU |
2/18/2021 | | | 890 | ||||||||||
NQ |
2/18/2021 | 280.80 | | 5,397 | ||||||||||
PSU |
2/12/2020 | | | 1,337 | ||||||||||
PSU |
2/12/2020 | | | 1,337 | ||||||||||
NQ |
2/12/2020 | 224.37 | 2,147 | 8,588 | ||||||||||
PSU |
12/10/2018 | | | 2,374 | ||||||||||
NQ |
12/10/2018 | 189.54 | 6,831 | 10,247 | ||||||||||
NQ |
12/5/2017 | 194.26 | 10,833 | 7,222 | ||||||||||
NQ |
12/9/2016 | 139.51 | 4,509 | 4,508 | ||||||||||
NQ |
2/10/2016 | 117.68 | 5,248 | | ||||||||||
NQ |
12/9/2015 | 128.93 | 5,254 | |
Exhibit B
Release
For and in consideration of certain benefits to be provided to me under the letter agreement, dated April 16, 2021 (the Agreement), between me and Waters Corporation (the Company), which are conditioned on my signing this General Release and Waiver of Claims (this Release of Claims), and to which I am not otherwise entitled, and other good and valuable consideration, the receipt and sufficiency of which I hereby acknowledge, on my own behalf and on behalf of my heirs, executors, administrators, beneficiaries, representatives, successors and assigns, and all others connected with or claiming through me, I hereby release and forever discharge the Company and its Affiliates (as defined in the Agreement), and all of their respective past, present and future officers, directors, shareholders, employees, employee benefits plans, administrators, trustees, agents, representatives, consultants, successors and assigns, and all those connected with any of them, in their official and individual capacities (collectively, the Released Parties), from any and all causes of action, suits, rights and claims, demands, damages and compensation of any kind and nature whatsoever, whether at law or in equity, whether now known or unknown, suspected or unsuspected, contingent or otherwise, which I now have or ever have had against the Released Parties, or any of them, including those in any way related to, connected with or arising out of my employment and/or other relationship with the Company or any of its affiliates or the termination thereof, including under or pursuant to Title VII of the Civil Rights Act, the Americans With Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act (as amended by the Older Workers Benefit Protection Act), the Employee Retirement Income Security Act, the wage and hour, wage payment and fair employment practices laws of the state or states in which I have provided services to the Company (each, as amended from time to time) and/or any other federal, state or local law, regulation, or other requirement (collectively, the Claims) through the date that I sign this Release of Claims, and I hereby waive all such Claims.
I understand that nothing contained in this Release of Claims shall be construed to prohibit me from filing a charge with or participating in any investigation or proceeding conducted by the federal Equal Employment Opportunity Commission or a comparable state or local agency, provided, however, that I hereby agree to waive my right to recover monetary damages or other individual relief in any charge, complaint or lawsuit filed by me or by anyone else on my behalf. I further understand that nothing contained in this Release of Claims shall be construed to limit, restrict or in any other way affect my communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
I acknowledge that I will continue to be bound by my obligations under the Agreement that survive the termination of my employment by the terms thereof or by necessary implication, including without limitation my confidentiality, non-competition, non-solicitation and non-disparagement obligations set forth in Section 6 of the Agreement.
I understand that nothing contained in this Release of Claims will adversely affect my rights to enforce the terms of the Agreement, and shall not adversely affect my rights to any defense, indemnification, contribution and/or coverage under the Companys directors and officers liability insurance policy or the charter or bylaws of the Company, in each case, in accordance
with its respective terms by reason of services I rendered for the Company or any of its subsidiaries as an officer and/or an employee thereof. Further, this release does not include and will not preclude: (a) rights to vested benefits under any applicable retirement and/or pension plans of the Company; (b) claims for unemployment compensation (which the Company will not contest); (c) rights under the Equity Documents (as defined in the Agreement) and/or (d) claims that cannot be waived under applicable law by singing this Release of Claims.
I acknowledge that this Release of Claims creates legally binding obligations, and that the Company has advised me to consult an attorney before signing it. I understand that I cannot sign this Release of Claims until the date my employment or service, as applicable, with the Company terminates. In signing this Release of Claims, I give the Company assurance that I have signed it voluntarily and with a full understanding of its terms; that I have had sufficient opportunity of not less than [twenty-one (21)/forty-five (45)]1 days before signing this Release of Claims to consider its terms and to consult with an attorney, if I wished to do so; and that I have not relied on any promises or representations, express or implied, that are not set forth expressly in this Release of Claims. I understand that I will have seven (7) days after signing this Release of Claims to revoke my signature, and that, if I intend to revoke my signature, I must do so in writing addressed and delivered to the General Counsel of the Company prior to the end of the seven (7)-day revocation period. I understand that this Release of Claims will become effective upon the eighth (8th) day following the date that I sign it, provided that I do not revoke my acceptance in accordance with the immediately preceding sentence.
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Period to consider the release to be determined by the Company on the Separation Date (for the post-employment release) or the end of the Consulting Period (for the post-consulting release). |
Accepted and agreed:
Signature: |
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Michael C. Harrington | ||
Date: |
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Agreed and acknowledged by:
Waters Corporation | ||
By: |
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Name: | ||
Title: |
[Signature Page to General Release and Waiver of Claims]
Exhibit 10.5
April 16, 2021
VIA EMAIL
Mr. Ian S. King
Ian_King@waters.com
Dear Ian:
This letter agreement (this Agreement) confirms the terms of the remainder of your employment with Waters Corporation (the Company) and your engagement as a consultant by the Company, as follows:
1. Transition Period.
(a) Transition. Subject to earlier termination as provided herein, from the date hereof through April 30, 2021 (the Transition Date), you will continue to serve as Senior Vice President, Global Products and as an executive officer of the Company and a member of the Executive Committee. On the Transition Date, you will be deemed to resign from any and all: (i) officer positions you hold with the Company or any of its Affiliates (as defined below); (ii) memberships you hold on any boards of directors, boards of managers or other governing boards or bodies of the Company or any of its Affiliates; and (iii) memberships you hold on any of the committees of any such boards or bodies. For purposes of this Agreement, Affiliates means all persons and entities directly or indirectly controlling, controlled by or under common control with the Company. Subject to earlier termination as provided herein, from the Transition Date until July 2, 2021 (the Separation Date), you will be employed by the Company, on a full-time basis, as a non-executive senior advisor and shall not, for the avoidance of doubt, be an executive officer of the Company or a member of the Executive Committee. The period beginning on the Transition Date and ending on the Separation Date is hereinafter referred to as the Transition Period. Subject to earlier termination as provided for herein, from July 3, 2021 until September 3, 2021 (the Consulting Period), you will serve as a non-employee consultant to the Company on the terms and conditions set forth in this Agreement.
(b) Duties and Responsibilities. Prior to the Transition Date, you will continue to perform your current duties. During the Transition Period, you will perform such duties as may be reasonably assigned to you from time to time by the President and Chief Executive Officer of the Company (the CEO) or his designee, including, without limitation, using best efforts in providing transition assistance as may be reasonably requested by the CEO or his designee. You will at all times continue to devote your best professional efforts to the Company and use your best efforts to abide by all Company policies and procedures as are in effect from time to time.
34 Maple Street Milford, MA 01757-3696 U.S.A. [T] 508.478.2000 [T] 1.800.252.4752 [F] 508.872.1990 [W] www.waters.com
(c) Compensation, Benefits and Reimbursements. From the date hereof until the Separation Date, you will continue to receive your base salary, payable at the rate in effect as of the date hereof ($430,000 per year) and in accordance with the Companys regular payroll practices, and to participate in all employee benefit plans and programs of the Company in accordance with the terms of those plans and programs, except that you will not be eligible to participate in the Companys annual bonus plan for fiscal year 2021. In addition, from the date hereof until the Separation Date, the Company will pay or reimburse you, in accordance with the Companys reimbursements procedures and practices in effect from time to time, for all reasonable business expenses incurred by you in the performance of your duties and responsibilities to the Company, provided that you submit on a timely basis such documentation and substantiation of those expenses as the Company may require from time to time.
(d) Equity Awards. You acknowledge and agree that Exhibit A attached to this Agreement sets forth a true and complete schedule of all stock options, restricted stock units and performance stock units previously granted by the Company to you that remain outstanding and unexercised, if applicable, as of the date hereof (collectively, the Equity Awards). The Equity Awards will continue to vest in accordance with their respective terms, as set forth in the Companys 2012 Equity Incentive Plan or 2020 Equity Incentive Plan, as applicable, and the award agreements between you and the Company thereunder (collectively, the Equity Documents) from the date hereof until the Separation Date.
2. Employment Termination.
(a) Resignation. On the Separation Date, you will be deemed to resign your position as senior advisor and shall terminate employment with the Company.
(b) Final Compensation. You will receive, on or as soon as reasonably practicable following the Separation Date, (i) your base salary for the final payroll period of your employment, through the Separation Date; (ii) compensation at the rate of your base salary for any unused vacation time in accordance with the Companys policies; and (iii) reimbursement for business expenses incurred by you but not yet paid to you as of the Separation Date, in accordance with the Companys reimbursements procedures and practices in effect from time to time; provided that you submit all expenses and supporting documentation required within sixty (60) days of the Separation Date.
(c) Treatment of Equity Awards. Your termination of employment on the Separation Date will be treated as a retirement for purposes of the Equity Awards (to the extent applicable). Without limiting the foregoing, and in each case in accordance with the terms of the applicable Equity Documents, (i) the Equity Awards that are unvested performance stock units shall remain outstanding and eligible to be earned based on performance for the applicable performance period and, to the extent earned, shall vest on a prorated basis based on the portion of the performance period during which you were employed through the Separation Date and (ii) the Equity Awards that are vested stock options shall remain outstanding and eligible to be exercised until the one-year anniversary of the Separation Date (or, if earlier, the expiration date of such stock options) and, to the extent not exercised on or prior to such one-year anniversary (or such earlier date), shall be forfeited for no consideration payable to you. Any Equity Awards not described in preceding sentence, to the extent not vested as of the Separation Date, shall be forfeited on the Separation Date for no consideration payable to you.
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(d) Employee Benefits. Except for any right you may have to continue participation in the Companys group health, dental and vision plans under applicable law, which will be communicated to you under separate cover, or as set forth in this Agreement, your active participation in all employee benefit plans and programs of the Company will terminate as of the Separation Date in accordance with the terms of those plans and programs. Following the end of any such continuation coverage period, you may participate in the Companys retiree health continuation program, a copy of which has been provided to you, or such other Company health, dental and vision insurance programs for which you are eligible in accordance with the terms of the applicable program. Nothing in this Agreement will affect any vested rights you may have under the Companys benefit plans and programs, including, for the avoidance of doubt, the Companys 401(k) Restoration Plan.
(e) No Further Compensation. You acknowledge and agree that the payments and benefits described in Sections 2(b) and 2(d) are in complete satisfaction of any and all compensation or benefits due to you from the Company or any of its Affiliates, whether for services provided or otherwise, through the Separation Date, and that, except as expressly provided under this Agreement, no further compensation or benefits are owed or will be paid to you. For the avoidance of doubt, from and after the Separation Date, you will not be eligible to receive any severance payments and benefits under the Change of Control/Severance Agreement between you and the Company, dated March 23, 2017 (the Change of Control Agreement).
(f) Release of Claims. In consideration of your continued service to the Company following the Separation Date as contemplated hereunder, the payments and benefits set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge, you agree to execute and return to the Company a release of claims in the form attached as Exhibit B to this Agreement (a Release) within the time period specified therein (but in no event prior to the Separation Date). The execution and non-revocation of such Release is a condition to the receipt of the benefits provided under Section 3 of this Agreement.
3. Consulting Engagement.
(a) Services. During the Consulting Period, you will be engaged to provide consulting services to the Company and its Affiliates relating to the organizational transition of employees, customers and business processes and such other services as may from time to time be requested by the Company and its Affiliates. Your consulting services shall be provided remotely or at the Companys offices. During the Consulting Period you will report to the CEO or such other person or persons designated by the Company. You and the Company anticipate that during the Consulting Period, you will devote not more than eight (8) hours per week to the performance of the consulting services contemplated by this Agreement. Based on such level of services, it is anticipated that you will experience a separation from service (as defined in Section 1.409A-1(h) of the Treasury Regulations) from the Company on the Separation Date.
(b) Relationship of the Parties. You and the Company expressly agree that, in providing services to the Company under this Section 3 during the Consulting Period, you will be
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an independent contractor and will not be an employee or agent of the Company or any of its Affiliates. You agree that you will have no right to make any commitments on behalf of the Company or any of its Affiliates without the express written consent of an authorized officer of the Company or its applicable Affiliate.
(c) Services for Others. During the Consulting Period, you may choose to also provide services for others, provided that such services do not (i) give rise to a conflict of interest or otherwise interfere with your obligations to the Company or any of its Affiliates or (ii) violate the Restrictive Covenants (as defined below).
(d) Compensation. In consideration of the services that you provide to the Company under this Agreement during the Consulting Period, the Company will pay you a consulting fee at the rate of $10,000 per month during the Consulting Period, prorated for partial months. Any consulting fee owed to you will be paid on a monthly basis in arrears.
(e) Taxes, Insurance and Benefits. You acknowledge and agree that, as an independent contractor during the Consulting Period, you will be solely responsible for all insurance and for the payment of all federal, state and local income taxes, Social Security and Medicare taxes and other legally required payments on any amounts received from the Company. You also acknowledge and agree that, during the Consulting Period, neither you nor any individual claiming through you will be eligible to actively participate in or receive benefits under any of the employee benefit plans, programs and arrangements maintained by the Company or any of its Affiliates, other than as expressly provided in this Agreement.
4. Early Termination. It is expected that your employment with the Company will continue until the Separation Date and that your consulting services will continue for the duration of the Consulting Period. Notwithstanding the foregoing or anything to the contrary in this Agreement, either you or the Company may at any time terminate your employment or service, as applicable, upon thirty (30) days written notice to other (or immediately upon notice to you, in the event your employment or service, as applicable, is terminated by the Company for Cause (as defined below)) and, in the event such termination of employment or service occurs prior to the end of the Consulting Period, you will receive the accrued and unpaid compensation and benefits required to be paid to you under applicable law and the terms of any applicable employee benefit plans and programs of the Company, and otherwise shall only be entitled to the compensation and benefits set forth in this Section 4.
(a) Termination of Employment without Cause. In the event your employment is terminated by the Company without Cause prior to the Separation Date, subject to your execution and non-revocation of a Release within the time period specified therein and your compliance with the Restrictive Covenants, (i) you will continue to be paid your base salary at the rate in effect as of the date hereof ($430,000 per year) in accordance with the Companys regular payroll practices beginning on the first payroll date following the date the Release becomes effective (with the first such payment to include all amounts that would have otherwise been paid following such termination of employment) through the Separation Date and (ii) such termination of employment shall be treated as a retirement for purposes of the Equity Awards (to the extent applicable).
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(b) Other Termination of Employment or Service. Except as set forth in Section 4(a) above, in the event of a termination of your employment or service for any reason, you shall not be entitled to receive any additional compensation or benefits under this Agreement or otherwise.
(c) Deemed Resignations. In the event of any termination of your employment for any reason prior to the Separation Date, you will be deemed to resign from any and all: (i) officer positions you hold with the Company or any of its Affiliates; (ii) memberships you hold on any boards of directors, boards of managers or other governing boards or bodies of the Company or any of its Affiliates; and (iii) memberships you hold on any of the committees of any such boards or bodies.
For purposes of this Agreement, Cause means (i) the conviction of you by a court of competent jurisdiction of, or the pleading of guilty or nolo contendere to, any felony or any crime involving moral turpitude; (ii) gross negligence, breach of fiduciary duty or material breach of any Restrictive Covenant (as defined below); (iii) you shall have willfully and continually failed to substantially perform your duties with the Company after a written demand for substantial performance is delivered by the Company, which demand specifically identifies the manner in which the Company believes that you have not substantially performed your duties pursuant to the disciplinary procedures of the Company, and such failure of substantial performance shall have continued for a period of thirty (30) days after such written demand; (iv) you have been chronically absent from work (excluding vacations, illnesses or leaves of absences); (v) the commission by you of an act of fraud, embezzlement or misappropriation against the Company; or (vi) you shall have refused, after explicit notice, to obey any lawful resolution or direction by the Board which is consistent with his or her duties as an officer of the Company and, includes your failure to execute an effective Release as required by this Agreement.
5. Withholding. Without limiting the provisions of Section 3(e) of this Agreement, the Company shall have the right to withhold from all payments made under this Agreement or otherwise paid or provided to you in respect of your employment with the Company any taxes or any other amounts required to be withheld by the Company or any of its Affiliates under applicable law, which amounts may be withheld in the discretion of the Company or any of its Affiliates from any amounts payable under this Agreement.
6. Confidential Information and Restricted Activities. You acknowledge the importance to the Company and its Affiliates of protecting their Confidential Information (as defined below) and other legitimate business interests, including the valuable trade secrets and good will that they have developed or acquired. In consideration of your continued service to the Company, the payments and benefits set forth in this Agreement, including Section 3 of this Agreement, to which you are not otherwise entitled, and other good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge, you agree that the following restrictions on your activities are reasonable and necessary to protect the legitimate interests of the Company and its Affiliates (such restrictions, together with any other confidentiality, non-solicitation, invention assignment or other restrictive covenants in favor of the Company or any of its Affiliates to you are bound, the Restrictive Covenants). For purposes of this Agreement, Person means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust or any other entity or organization, other than the Company or any of its Affiliates.
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(a) Confidential Information.
(i) During the course of your employment and/or service with the Company and its Affiliates, you may learn or have learned of Confidential Information, and you may develop or have developed Confidential Information on behalf of the Company and its Affiliates. You agree that you will not use or disclose to any Person (except as required by applicable law or for the proper performance of your regular duties and responsibilities for the Company) any Confidential Information obtained by you incident to your employment and/or service with the Company or any of its Affiliates. You agree that this restriction shall continue to apply after your employment and/or service terminates, regardless of the reason for such termination. For purposes of this Agreement, Confidential Information means any and all information of the Company and its Affiliates that is not generally available to the public. Confidential Information also includes any information received by the Company or any of its Affiliates from any Person with any understanding, express or implied, that it will not be disclosed. Confidential Information does not include information that enters the public domain, other than through your breach of your obligations under this Agreement.
(ii) You understand and acknowledge that you will not be held criminally or civilly liable under any federal or state trade secret law for disclosing a trade secret in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, in each case, solely for the purpose of reporting or investigating a suspected violation of law, or for disclosing a trade secret in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Notwithstanding this immunity from liability, you may be held liable if you unlawfully access trade secrets or Confidential Information by unauthorized means. Notwithstanding the foregoing, nothing in this Agreement limits, restricts or in any other way affects your communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
(b) Protection of Documents. All documents, records and files, in any media of whatever kind and description, relating to the business, present or otherwise, of the Company or any of its Affiliates, and any copies, in whole or in part, thereof (the Documents), whether or not prepared by you, shall be the sole and exclusive property of the Company. You agree to safeguard all Documents and to surrender to the Company, on or before the Separation Date or at such earlier time or times as the Company or its designee may specify, all Documents then in your possession or control. You also agree to disclose to the Company, on or before the end of the Consulting Period or at such earlier time or times as the Company or its designee may specify, all passwords necessary or desirable to obtain access to, or that would assist in obtaining access to, any information which you have password protected on any computer equipment, network or system of the Company or any of its Affiliates. You further agree to surrender, on or prior to the end of the Consulting Period, or such earlier time or times as the Company or its designee may specify any cellular phone, laptop, iPad or other electronic equipment provided to you by the Company or any of its Affiliates.
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7. Section 409A.
(a) This Agreement and the payments and benefits provided hereunder are intended to be exempt from, or comply with, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the Code), and shall be construed consistently with that intent. Notwithstanding the foregoing, in no event shall the Company have any liability relating to the failure or alleged failure of any payment or benefit under this Agreement to be exempt from, or comply with, the requirements of Section 409A of the Code. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments.
(b) Any reimbursement for expenses payable to you hereunder that would constitute nonqualified deferred compensation subject to Section 409A of the Code shall be subject to the following additional rules: (i) no reimbursement of any such expense shall affect your right to reimbursement of any such expense in any other taxable year; (ii) reimbursement of the expense shall be made, if at all, promptly, but not later than the end of the calendar year following the calendar year in which the expense was incurred; and (iii) the right to reimbursement shall not be subject to liquidation or exchange for any other benefit.
(c) If you are a specified employee (as defined below) at the time of your separation from service (as defined below), any payments or benefits that are payable under this Agreement or otherwise on account of your separation from service that would (but for this provision) be payable within six (6) months following the date of such separation from service, shall instead be paid on the next business day following the expiration of such six (6)-month period or, if earlier, upon your death; except (i) to the extent of amounts that do not constitute a deferral of compensation within the meaning of Section 1.409A-1(b) of the Treasury Regulations (including without limitation by reason of the safe harbor set forth in Section 1.409A-1(b)(9)(iii), as determined by the Company in its reasonable good faith discretion); (ii) benefits which qualify as excepted welfare benefits pursuant to Section 1.409A-1(a)(5) of the Treasury Regulations; or (iii) other amounts or benefits that are not subject to the requirements of Section 409A of the Code.
(d) For purposes of this Agreement, the term separation from service shall have the meaning set forth in Section 1.409A-1(h) of the Treasury Regulations (after giving effect to the presumptions contained therein), and the term specified employee means an individual determined by the Company to be a specified employee under Section 1.409A-1(i) of the Treasury Regulations.
8. Miscellaneous. This Agreement constitutes the entire agreement between you and the Company, and replaces all prior and contemporaneous agreements, whether written or oral, with respect to the subject matter of this Agreement and all related matters, including, without limitation, the Change of Control Agreement. This Agreement may not be amended and no breach will be deemed waived unless agreed to in a signed writing by you and an authorized officer of the Company. The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any provision of this Agreement. This is a Massachusetts contract and shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to any conflict of laws principles that would result in the application of the laws of another jurisdiction. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled exclusively by single-arbitrator arbitration in Boston, Massachusetts in accordance with the Employment Arbitration Rules of the American
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Arbitration Association then in effect, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party shall bear the cost of its or his or her, respectively, own legal fees in connection with such dispute. This Agreement may be executed in separate counterparts (including by electronically delivered .pdf files or copies of manually signed signature pages), each of which will be deemed to be an original and all of which taken together will constitute one and the same agreement.
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If the foregoing is acceptable to you, please sign this letter in the space provided and return it to the Company. The enclosed copy of this letter, which you should also sign and date, is for your records.
Sincerely, WATERS CORPORATION |
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By: |
/s/ Udit Batra
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Udit Batra | ||
President and Chief Executive Officer |
Accepted and agreed: | ||
/s/ Ian S. King
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Ian S. King | ||
Date: |
19 April 2021 |
[Signature Page to Transition Agreement]
Exhibit A
Equity Awards
Type of Equity Award |
Grant Date |
Exercise Price
per Share |
Number of
Options/RSUs/PSUs Vested as of April 16, 2021 |
Number of
Options/RSUs/PSUs Unvested as of April 16, 2021 |
||||||||||
PSU |
2/18/2021 | | | 890 | ||||||||||
PSU |
2/18/2021 | | | 890 | ||||||||||
NQ |
2/18/2021 | 280.80 | | 5,397 | ||||||||||
PSU |
2/12/2020 | | | 1,448 | ||||||||||
PSU |
2/12/2020 | | | 1,449 | ||||||||||
NQ |
2/12/2020 | 224.37 | 2,325 | 9,304 | ||||||||||
PSU |
12/10/2018 | | | 2,057 | ||||||||||
NQ |
12/10/2018 | 189.54 | 5,920 | 8,881 | ||||||||||
NQ |
12/5/2017 |
194.26 | 9,628 | 6,420 | ||||||||||
NQ |
8/17/2017 | 180.22 | 3,960 | 2,640 | ||||||||||
NQ |
12/9/2016 | 139.51 | 15,029 | 3,758 | ||||||||||
NQ |
2/10/2016 | 117.68 | 13,119 | | ||||||||||
NQ |
12/9/2015 | 128.93 | 17,825 | | ||||||||||
NQ |
12/11/2014 | 113.36 | 19,000 | |
Exhibit B
Release
For and in consideration of certain benefits to be provided to me under the letter agreement, dated April 16, 2021 (the Agreement), between me and Waters Corporation (the Company), which are conditioned on my signing this General Release and Waiver of Claims (this Release of Claims), and to which I am not otherwise entitled, and other good and valuable consideration, the receipt and sufficiency of which I hereby acknowledge, on my own behalf and on behalf of my heirs, executors, administrators, beneficiaries, representatives, successors and assigns, and all others connected with or claiming through me, I hereby release and forever discharge the Company and its Affiliates (as defined in the Agreement), and all of their respective past, present and future officers, directors, shareholders, employees, employee benefits plans, administrators, trustees, agents, representatives, consultants, successors and assigns, and all those connected with any of them, in their official and individual capacities (collectively, the Released Parties), from any and all causes of action, suits, rights and claims, demands, damages and compensation of any kind and nature whatsoever, whether at law or in equity, whether now known or unknown, suspected or unsuspected, contingent or otherwise, which I now have or ever have had against the Released Parties, or any of them, including those in any way related to, connected with or arising out of my employment and/or other relationship with the Company or any of its affiliates or the termination thereof, including under or pursuant to Title VII of the Civil Rights Act, the Americans With Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act (as amended by the Older Workers Benefit Protection Act), the Employee Retirement Income Security Act, the wage and hour, wage payment and fair employment practices laws of the state or states in which I have provided services to the Company (each, as amended from time to time) and/or any other federal, state or local law, regulation, or other requirement (collectively, the Claims) through the date that I sign this Release of Claims, and I hereby waive all such Claims.
I understand that nothing contained in this Release of Claims shall be construed to prohibit me from filing a charge with or participating in any investigation or proceeding conducted by the federal Equal Employment Opportunity Commission or a comparable state or local agency, provided, however, that I hereby agree to waive my right to recover monetary damages or other individual relief in any charge, complaint or lawsuit filed by me or by anyone else on my behalf. I further understand that nothing contained in this Release of Claims shall be construed to limit, restrict or in any other way affect my communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
I acknowledge that I will continue to be bound by my obligations under the Agreement that survive the termination of my employment by the terms thereof or by necessary implication, including without limitation my confidentiality obligations set forth in Section 6 of the Agreement.
I understand that nothing contained in this Release of Claims will adversely affect my rights to enforce the terms of the Agreement, and shall not adversely affect my rights to any defense, indemnification, contribution and/or coverage under the Companys directors and officers liability insurance policy or the charter or bylaws of the Company, in each case, in accordance with its respective terms by reason of services I rendered for the Company or any of its subsidiaries
as an officer and/or an employee thereof. Further, this release does not include and will not preclude: (a) rights to vested benefits under any applicable retirement and/or pension plans of the Company; (b) claims for unemployment compensation (which the Company will not contest); (c) rights under the Equity Documents (as defined in the Agreement) and/or (d) claims that cannot be waived under applicable law by singing this Release of Claims.
I acknowledge that this Release of Claims creates legally binding obligations, and that the Company has advised me to consult an attorney before signing it. I understand that I cannot sign this Release of Claims until the date my employment or service, as applicable, with the Company terminates. In signing this Release of Claims, I give the Company assurance that I have signed it voluntarily and with a full understanding of its terms; that I have had sufficient opportunity of not less than [twenty-one (21)/forty-five (45)]1 days before signing this Release of Claims to consider its terms and to consult with an attorney, if I wished to do so; and that I have not relied on any promises or representations, express or implied, that are not set forth expressly in this Release of Claims. I understand that I will have seven (7) days after signing this Release of Claims to revoke my signature, and that, if I intend to revoke my signature, I must do so in writing addressed and delivered to the General Counsel of the Company prior to the end of the seven (7)-day revocation period. I understand that this Release of Claims will become effective upon the eighth (8th) day following the date that I sign it, provided that I do not revoke my acceptance in accordance with the immediately preceding sentence.
[Remainder of page intentionally left blank.]
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Period to consider the release to be determined by the Company on the Separation Date (for the post-employment release) or the end of the Consulting Period (for the post-consulting release). |
Accepted and agreed: | ||
Signature: | ||
Ian S. King | ||
Date: |
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Agreed and acknowledged by: | ||
Waters Corporation | ||
By: | ||
Name: | ||
Title: |
[Signature Page to General Release and Waiver of Claims]
Exhibit 10.6
April 16, 2021
Jonathan M. Pratt
2544 Royal Palm Way
Weston, FL 33327-1505
Dear Jon:
We are pleased to formally offer you the position, initially of Senior Vice President, Waters Division of Waters Corporation (Waters or the Company), effective May 1, 2021. In this position you will report to Udit Batra, President and Chief Executive Officer. You understand that your title may change in the future. The principal terms associated with this change in role are as follows:
Base Salary
In connection with your change in role, effective May 1, 2021, your base salary will be increased to $21,846.15 USD per bi-weekly pay period, which annualized, for your reference only, is $568,000.00 USD (Base Salary), less taxes and other deductions. Your performance, and any potential Base Salary increase (if applicable), will continue be reviewed on an annual basis, typically during the month of March. You will not be entitled to overtime pay and your Base Salary is intended to cover all hours worked, including hours worked in excess of 40 in a work week.
Annual Bonus
You will continue to participate in the Waters Annual Incentive Program (AIP) and your target annual incentive compensation opportunity under the AIP will continue to be 75% of your base salary. For the 2021 fiscal year, any annual incentive compensation paid to you under the AIP will be determined on a blended basis based on your current rate of your base salary (prior to increase as provided for herein) and the rate of your Base Salary set forth above, based on the number of months (whether full or partial) you received each such rate.
One-Time Supplemental Equity Award
In connection with your change in role, subject to the terms of approval as set forth by the Compensation Committee of the Board of Directors of Waters (the Compensation Committee), you will be granted a one-time supplemental equity award with a total value of approximately $300,000.00 (the Supplemental Equity Award). The Supplemental Equity Award will be in the form of non-qualified stock options (totaling 50% of the total grant value) and restricted stock units (totaling 50% of the total grant value), in each case, as determined by the Compensation Committee. These non-qualified stock options and restricted stock units will vest 20% per year on each of the first five anniversaries of the date of grant, subject to your continued employment through each applicable vesting date. The
34 Maple Street Milford, MA 01757-3696 U.S.A. [T] 508.478.2000 [T] 1.800.252.4752 [F] 508.872.1990 [W] www.waters.com
Supplemental Equity Award will be granted under the Companys 2020 Equity Incentive Plan and will be evidenced by, and subject to the terms and conditions described in, individual award agreements to be entered into between you and Waters.
Benefits and Vacation Time
You will continue to be eligible to participate in the Companys applicable benefit plans and accrue vacation time in accordance with the Companys practices and applicable law and in accordance with the terms of the applicable benefit plans and/or Company policies.
Restrictive Covenants
By signing below, you acknowledge and agree to be bound by the restrictive covenants set forth in Exhibit A to this agreement, which shall become effective on May 3, 2021, unless you revoke this agreement prior to such date. You acknowledge and agree that the increase in Base Salary and the Supplemental Equity Award are contingent upon your execution and non-revocation of this agreement, your agreeing to be bound by such restrictive covenants and such restrictive covenants becoming effective on May 3, 2021. In the event that you do not sign this agreement, or revoke this agreement prior to the restrictive covenants becoming effective, the increase in Base Salary described in this agreement will not take effect, the Supplemental Equity Award will not be made, and you will forfeit any entitlement to the Supplemental Equity Award.
At-Will Employment
While we hope that our relationship will continue to be mutually satisfying, your employment with Waters continues to be on an at-will basis. Accordingly, to the extent permitted by applicable laws, the Company recognizes the right to terminate or discontinue your employment for any reason with or without notice. Likewise, the Company recognizes your reciprocal right to terminate or discontinue your employment with the Company for any reason, with or without notice.
If you are in agreement with the terms and conditions set forth above and in Exhibit A, please accept this agreement by signing, dating and returning it by April 19, 2021. By signing below, you acknowledge that (1) the Company provided you with the restrictive covenants set forth in Exhibit A at least ten (10) business days before the effective date of such covenants, (2) you have been and are hereby advised of your right to consult an attorney before signing this agreement, and (3) you have carefully read this agreement, including Exhibit A, and understand and agree to all of the provisions in this agreement.
Regards,
/s/ Udit Batra
|
Udit Batra |
President and Chief Executive Officer |
Accepted and agreed:
Signature: |
/s/ Jonathan M. Pratt
|
|
Jonathan M. Pratt | ||
Date: |
18 April 2021 |
Exhibit A
Restrictive Covenants
(a) Confidential Information. During the course of your employment with the Company, you have learned and will continue to learn of Confidential Information, as defined below, and you may have developed or may develop Confidential Information on behalf of the Company and its Affiliates. You agree that you will not use or disclose to any Person (except as required for the good faith performance of your duties and responsibilities for the Company), any Confidential Information obtained by you incident to your employment or any other association with the Company or any of its Affiliates. You agree that this restriction shall continue to apply after your employment terminates, regardless of the reason for such termination. Confidential Information also includes any information received by the Company or any of its Affiliates from any Person with any understanding, express or implied, that it will not be disclosed. Confidential Information does not include information that enters the public domain, other than through your breach of your obligations under this Exhibit A. You understand and acknowledge that you will not be held criminally or civilly liable under any federal or state trade secret law for disclosing a trade secret in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, in each case, solely for the purpose of reporting or investigating a suspected violation of law, or for disclosing a trade secret in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Notwithstanding this immunity from liability, you may be held liable if you unlawfully access trade secrets or Confidential Information by unauthorized means. Notwithstanding the foregoing, nothing in this Exhibit A limits, restricts or in any other way affects your communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
(b) Protection of Documents. All documents, records and files, in any media of whatever kind and description, relating to the business, present or otherwise, of the Company or any of its Affiliates, and any copies, in whole or in part, thereof (the Documents), whether or not prepared by you, shall be the sole and exclusive property of the Company. You agree to safeguard all Documents and to surrender to the Company, at the time your employment terminates or at such earlier time or times as the Board or its designee may specify, all Documents then in your possession or control. You also agree to disclose to the Company, at the time your employment terminates or at such earlier time or times as the Board or its designee may specify, all passwords necessary or desirable to obtain access to, or that would assist in obtaining access to, any information which you have password-protected on any computer equipment, network or system of the Company or any of its Affiliates.
(c) Assignment of Rights to Intellectual Property. You shall promptly and fully disclose all Intellectual Property (as defined below) to the Company. You hereby assign and agree to assign to the Company (or as otherwise directed by the Company) your full right, title and interest in and to all Intellectual Property. You agree to execute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Intellectual Property to the Company and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. You will not charge the Company for time spent in complying with these obligations. All copyrightable works that you create during your employment shall be considered work made for hire and shall, upon creation, be owned exclusively by the Company.
(d) Non-Disparagement. Subject to the last sentence of Section (a) above, you agree that you will never disparage or criticize any of the Company, its Affiliates, their business, their management or members of the Board or their products or services, and that you will not otherwise do or say anything that could disrupt the good morale of employees of the Company or any of its Affiliates or harm the interests or reputation of the Company or any of its Affiliates.
(e) Restricted Activities. You acknowledge that by virtue of your employment with the Company or any of its Affiliates, you have provided or will provide services or have had or will have a material presence or influence in every country, city, county and other locale in which the Company or any of its Affiliates provides services or has a material presence or influence during the last two (2) years of your employment with the Company or any of its Affiliates (the Restricted Area). You agree that the following restrictions on your activities during and after your employment are necessary to protect the good will, Confidential Information, trade secrets and other legitimate interests of the Company and its Affiliates and are supported by mutually agreed upon fair, reasonable, valid and sufficient consideration (including, without limitation, the increase in Base Salary and Supplemental Equity Award described in the agreement to which this Exhibit A is attached):
(i) While you are employed by the Company and for (a) one (1) year after your termination of employment for any reason, except as provided in clause (b), or (b) two (2) years following your termination of your employment if, at any time, you have breached any fiduciary duty to the Company or its Affiliates or have engaged in an Unlawful Taking of Company Property (as defined below), (either such period, as applies, the Non-Compete Restricted Period), you shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the Company or any of its Affiliates or undertake any planning for any business that is competitive with the business of the Company or any of its Affiliates in the Restricted Area in a Restricted Position. Specifically, but without limiting the foregoing, you agree not to work or provide services, in a Restricted Position, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Person that is engaged in any business that is competitive with the business of the Company or its Affiliates, as conducted or in planning (provided such planning has been approved by the Board of Directors of the Company) during your employment with the Company anywhere in the Restricted Area; provided, however, this Section (e)(i) will not apply after your employment is terminated without Cause for Purposes of Section (e)(i). Notwithstanding the foregoing, neither (x) nor (y), as provided below, shall be considered a violation of this Section (e)(i): (x) the ownership of not more than two percent (2%) of the outstanding securities of any class of any entity that is listed on a national securities exchange or quoted or traded in the over-the-counter market, or (y) the provision of services (as an employee, independent contractor or otherwise) to an entity where no more than a de minimis amount of revenue is derived from a business that is competitive with the business of the Company or any of its Affiliates, provided you are not responsible for (and do not participate in) the day-to-day management or supervision of such business and provided you do not have direct (which shall not mean indirect) supervision over the individual or individuals who are so responsible for such day-to-day management or supervision.
(ii) While you are employed by the Company and during the twenty-four (24)-month period immediately following termination of your employment, regardless of the reason therefor (in the aggregate, the Restricted Period), you shall not, directly or indirectly, except, while employed by the Company, in the good faith performance of your duties to the Company, (a) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or (b) seek to persuade any such customer or prospective customer of the Company or any of its Affiliates to conduct with anyone else any business or activity which such customer or prospective customer conducts or could conduct with the Company or any of its Affiliates; provided, however, that
these restrictions shall apply only with respect to those Persons who are or have been a customer of the Company or any of its Affiliates at any time within the immediately preceding one (1)-year period or whose business has been solicited on behalf of the Company or any of the Affiliates by any of their officers, employees or agents within such one (1)-year period, other than by form letter, blanket mailing or published advertisement.
(iii) During the Restricted Period, you shall not, and shall not assist any other Person to, (a) hire or solicit for hiring any employee of the Company or any of its Affiliates or seek to persuade any employee of the Company or any of its Affiliates to discontinue employment; or (b) solicit or encourage any independent contractor providing services to the Company or any of its Affiliates to terminate or diminish his, her or its relationship with them; provided, however, the foregoing shall not be violated by general advertising or general solicitation for employment not specifically directed at the Companys employees. For the purposes of this Exhibit A, an employee or an independent contractor of the Company or any of its Affiliates is any person who was such at any time within the preceding one (1) year.
(iv) In signing the agreement to which this Exhibit A is attached, you give the Company assurance that you have carefully read and considered all the terms and conditions of this Exhibit A, including the restraints imposed on you hereunder. You agree without reservation that these restraints are necessary for the reasonable and proper protection of the Company and its Affiliates, and that each and every one of the restraints is reasonable in respect to subject matter, length of time and geographic area. You further agree that, were you to breach any of the covenants contained in this Exhibit A, the damage to the Company and its Affiliates would be irreparable. You therefore agree that the Company, in addition to any other remedies available to it, shall be entitled to preliminary and permanent injunctive relief against any breach or threatened breach by you of any of those covenants, without having to post bond. So that the Company may enjoy the full benefit of the covenants contained in this Section (e), you further agree that the Restricted Period shall be tolled, and shall not run, during the period of any breach by you of any of the covenants contained in Section (e)(ii) or (iii). You and the Company further agree that, in the event that any provision of this Exhibit A is determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, that provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law. You also agree that each of the Companys Affiliates shall have the right to enforce all of your obligations to that Affiliate under this Exhibit A. Finally, no claimed breach of the agreement to which this Exhibit A is attached or other violation of law attributed to the Company, or change in the nature or scope of your employment relationship with the Company or any of its Affiliates, shall operate to excuse you from the performance of your obligations under this Exhibit A.
(f) Definitions. For purposes of this Exhibit A, the following terms will have the meanings set forth below:
(i) Affiliates means all persons and entities directly or indirectly controlling, controlled by or under common control with the Company, where control may be by management authority, equity interest or otherwise.
(ii) Board means the Board of Directors of the Company.
(iii) Cause for Purposes of Section (e)(i) means (solely with respect to this Exhibit A and notwithstanding any other agreement between the Company or any of its Affiliates and me containing this defined term) the occurrence of any of the following, as determined by the Company
in its reasonable discretion: (i) your failure to perform your duties and responsibilities to the Company or any of its Affiliates, or the performance of your duties and responsibilities to the Company or any of its Affiliates in a manner deemed by the Company to be in any way unsatisfactory; (ii) your breach of this Exhibit A or any other agreement between you and the Company or any of its Affiliates; (iii) your commission of, or plea of nolo contendere to, a felony or other crime; (iv) any misconduct by you or other conduct by you that is or could reasonably be expected to be harmful to the business interests or reputation of the Company or any of its Affiliates; (v) your violation or disregard for any rule or procedure or policy of the Company or any of its Affiliates; (vi) any other reasonable basis for Company dissatisfaction with you, including for reasons such as lack of capacity or diligence, failure to conform to usual standards of conduct, or other culpable or inappropriate behavior; or (vii) any other grounds for discharge that are reasonably related, in the Companys honest judgment, to the needs of the business of the Company or any of its Affiliates.
(iv) Confidential Information means any and all information of the Company and its Affiliates that is not generally available to the public.
(v) Intellectual Property means inventions, discoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets) (collectively, Inventions) conceived, made, created, developed or reduced to practice by you (whether alone or with others, whether or not during normal business hours or on or off Company premises) during your employment that relate to the business of the Company or to any prospective activity of the Company or any of its Affiliates, that result from any work performed by you for the Company or any of its Affiliates or that make use of Confidential Information or any of the equipment or facilities of the Company or any of its Affiliates. Notwithstanding the foregoing, Intellectual Property shall not include any Invention that you develop entirely on your own time, without using the equipment, supplies, facilities or trade secret information of the Company or any of its Affiliates, unless such Invention (a) relates to the business of the Company or any of its Affiliates for whom you are performing services or to the actual or demonstrably anticipated research or development of the Company or any of its Affiliates for whom you are performing services or (b) results from any work performed by you for the Company or any of its Affiliates.
(vi) Person means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust or any other entity or organization, other than the Company or any of its Affiliates.
(vii) Restricted Position means a position involving any of the services provided by you to the Company or any of its Affiliates during the last two (2) years of your employment with the Company or any of its Affiliates.
(viii) Unlawful Taking of Company Property means your failure to (A) return to the Company or its Affiliate (as applicable), within five (5) days following your termination of employment for any reason, all Documents and physical property of the Company or any of its Affiliates, including but not limited to, any credit cards; work laptops, iPads, mobile phones, data storage devices of any kind or other computer or electronic equipment; employee identification materials; keys; documents, files, papers, memoranda, letters or other communications or work product; or work-related passwords or passcodes, in each case, which you have in your possession, custody or control that were written, created, authorized, signed, received or transmitted during your employment; and (B) at the direction of the Company, within ten (10) days following your termination of employment, either provide copies to the Company and then permanently delete the originals of, or permanently delete the originals of, all electronic property of the Company or any of its Affiliates, including, but not limited to, work files and emails, including, but not limited to, on any personal email account, personal computer, Dropbox account, zip drive, thumb drive, external hard drive, or cloud storage system.
Exhibit 31.1
CHIEF EXECUTIVE OFFICER CERTIFICATION PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Dr. Udit Batra, certify that:
1. |
I have reviewed this Quarterly Report on Form 10-Q of Waters Corporation; |
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. |
The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) |
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) |
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) |
evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) |
disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. |
The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
a) |
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and |
b) |
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: May 6, 2021 |
/s/ Dr. Udit Batra |
|||
Dr. Udit Batra | ||||
Chief Executive Officer |
Exhibit 31.2
CHIEF FINANCIAL OFFICER CERTIFICATION PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Michael F. Silveira, certify that:
1. |
I have reviewed this Quarterly Report on Form 10-Q of Waters Corporation; |
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. |
The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) |
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) |
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) |
evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) |
disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. |
The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
a) |
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and |
b) |
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: May 6, 2021 |
/s/ Michael F. Silveira |
|||
Michael F. Silveira | ||||
Interim Chief Financial Officer |
Exhibit 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
The certification set forth below is hereby made solely for the purpose of satisfying the requirements of Section 906 of the Sarbanes-Oxley Act of 2002 and may not be relied upon or used for any other purposes.
In connection with the Quarterly Report of Waters Corporation (the Company) on Form 10-Q for the period ended April 3, 2021, as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Dr. Udit Batra, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge: (1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
A signed original of this written statement required by Section 906 or other document authenticating, acknowledging or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.
Date: May 6, 2021
By: /s/ Dr. Udit Batra |
Dr. Udit Batra |
Chief Executive Officer |
Exhibit 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
The certification set forth below is hereby made solely for the purpose of satisfying the requirements of Section 906 of the Sarbanes-Oxley Act of 2002 and may not be relied upon or used for any other purposes.
In connection with the Quarterly Report of Waters Corporation (the Company) on Form 10-Q for the period ended April 3, 2021, as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Michael F. Silveira, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge: (1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
A signed original of this written statement required by Section 906 or other document authenticating, acknowledging or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.
Date: May 6, 2021
By: /s/ Michael F. Silveira |
Michael F. Silveira |
Interim Chief Financial Officer |