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[NYCORP2:313358.3:4335:02/26/97--3:45p]
[NYCORP2:313358.3:4335:02/26/97--3:45p]
[Draft--3/4/97] EXHIBIT 1
FORM OF SHELF UNDERWRITING AGREEMENT
MILLIPORE CORPORATION
DEBT SECURITIES
Underwriting Agreement
, 1997
To the Representative[s] named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Millipore Corporation, a Massachusetts corporation (the
"Company"), proposes to issue and sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
Representative[s] (the "Representative[s]"), the principal amount of its
debt securities identified in Schedule I hereto (the "Securities"), to
be issued under the indenture specified in Schedule I hereto (the
"Indenture") between the Company and the Trustee identified in such
Schedule (the "Trustee"). If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then
the terms "Underwriters" and "Representative[s]", as used herein, shall
each be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions
of Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Securities Act"), a
registration statement (the file number of which is set forth in
Schedule I hereto) on Form S-3, relating to certain debt securities (the
"Shelf Securities") to be issued from time to time by the Company. The
Company also has filed with, or proposes to file with, the Commission
pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. The registration statement as
amended to the date of this Agreement is hereinafter referred to as the
"Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus
as supplemented by the prospectus supplement specifically relating to
the Securities in the form first used to confirm sales of the Securities
is hereinafter referred to as the "Prospectus". Any reference in this
Agreement to the Registration Statement, the Basic Prospectus, any
preliminary form of Prospectus (a "preliminary prospectus") previously
filed with the Commission pursuant to Rule 424 or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities
Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this
Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to
"amend", "amendment" or "supplement" with respect the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
under the Exchange Act after the date of this Agreement, or the date of
the Basic Prospectus, any preliminary prospectus or the Prospectus, as
the case may be, which are deemed to be incorporated by reference
therein.
The Company hereby agrees with the Underwriters as follows:
. The Company agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on
the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Company the respective principal
amount of Securities set forth opposite such Underwriter's name in
Schedule II hereto at the purchase price set forth in Schedule I hereto
plus accrued interest, if any, from the date specified in Schedule I
hereto to the date of payment and delivery.
. The Company understands that the several Underwriters
intend (i) to make a public offering of their respective portions of the
Securities and (ii) initially to offer the Securities upon the terms set
forth in the Prospectus.
. Payment for the Securities shall be made by wire transfer
in immediately available funds, to the account specified by the Company
to the Representative[s] no later than noon the Business Day (as defined
below) prior to the Closing Date (as defined below), on the date and at
the time and place set forth in Schedule I hereto (or at such other time
and place on the same or such other date, not later than the fifth
Business Day (as defined below) thereafter, as you and the Company may
agree in writing). As used herein, the term "Business Day" means any
day other than a day on which banks are permitted or required to be
closed in New York City. The time and date of such payment and delivery
with respect to the Designated Securities are referred to herein as the
"Closing Date".
Payment for the Securities shall be made against delivery to
the nominee of The Depository Trust Company for the respective accounts
of the several Underwriters of the Securities of one or more global
notes (the "Global Note") representing the Securities, with any transfer
taxes payable in connection with the transfer to the Underwriters of the
Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representative[s] at the office of [X.X.
Xxxxxx Securities Inc.] not later than 1:00 P.M., New York City time, on
the Business Day prior to the Closing Date.
. The Company represents and warrants to each Underwriter
that:
() the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending
the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been instituted or threatened by
the Commission; and the Registration Statement and Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) comply, or will comply, as the
case may be, in all material respects with the Securities Act and
the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Trust
Indenture Act"), and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; except that the foregoing
representations and warranties shall not apply to (i) that part of
the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee, and (ii) statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and
in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative[s] expressly for use therein;
() the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as
the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus or any further amendment or supplement thereto ,
when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations thereunder and
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading;
() the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of the
dates indicated and the results of their operations and the changes
in their consolidated cash flows for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis, and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the
information required to be stated therein; and the pro forma
financial information, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable and is based upon good faith estimates and assumptions
believed by the Company to be reasonable;
() since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not
been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries, or any material adverse change,
or any development involving a prospective material adverse change,
in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and
except as set forth or contemplated in the Prospectus neither the
Company nor any of its subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to the Company and its subsidiaries taken as a
whole;
() the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases properties, or conducts any business, so as to require
such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole;
() each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation under the
laws of its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each jurisdiction in
which it owns or leases properties or conducts any business so as
to require such qualification, other than where the failure to be
so qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole; and
all the outstanding shares of capital stock of each subsidiary of
the Company have been duly authorized and validly issued, are fully-
paid and non-assessable, and (except in the case of foreign
subsidiaries, for directors' qualifying shares) are owned by the
Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
() this Agreement has been duly authorized, executed and
delivered by the Company;
() the Securities have been duly authorized, and, when issued
and delivered pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute
valid and binding obligations of the Company entitled to the
benefits provided by the Indenture; the Indenture has been duly
authorized and upon effectiveness of the Registration Statement
will have been duly qualified under the Trust Indenture Act and,
when executed and delivered by the Company and the Trustee, the
Indenture will constitute a valid and binding instrument; and the
Securities and the Indenture will conform to the descriptions
thereof in the Prospectus;
() neither the Company nor any of its subsidiaries is, or with
the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation
or By-Laws or any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them or
any of their respective properties is bound, except for violations
and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole or to
the holders of the Securities; the issue and sale of the Securities
and the performance by the Company of all of the provisions of its
obligations under the Securities, the Indenture and this Agreement
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will any
such action result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of the Company or any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties;
and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be required
under state securities or Blue Sky Laws in connection with the
purchase and distribution of the Securities by the Underwriters;
() other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits
or proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its
subsidiaries or any of their respective properties or to which the
Company or any of its subsidiaries is or may be a party or to which
any property of the Company or any of its subsidiaries or any of
their respective properties or to which the Company or any of its
subsidiaries is or may be the subject which, if determined
adversely to the Company or any of its subsidiaries, could
individually or in the aggregate have, or reasonably be expected to
have, a material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as
a whole and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others; and there are no statutes,
regulations, contracts or other documents that are required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are
not filed or described as required;
() Coopers & Xxxxxxx LLP, who have certified certain financial
statements of the Company and its subsidiaries, Price Waterhouse
LLP and Ernst & Young, who have certified certain financial
statements of the Amicon separation business of X.X. Xxxxx & Co.
and Tylan General, Inc., respectively, are each independent public
accountants as required by the Securities Act;
() the Company and its subsidiaries have good and marketable
title in fee simple to all items of real property and good and
marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except
such as are described or referred to in the Prospectus or such as
do not materially affect the value of such property and do not
interfere with the use made or proposed to be made of such property
by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are
held by them under valid, existing and enforceable leases with such
exceptions as are not material and do not interfere with the use
made or proposed to be made of such property and buildings by the
Company or its subsidiaries;
() no relationship, direct or indirect, exists between or
among the Company or any or its subsidiaries on the one hand, and
the directors, officers, stockholders, customers or suppliers of
the Company or any of its subsidiaries on the other hand, which is
required by the Securities Act to be described in the Registration
Statement and the Prospectus which is not so described;
() the Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company" or
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
() the Company and its subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be
filed and have paid all taxes shown thereon and all assessments
received by them or any of them to the extent that such taxes have
become due and are not being contested in good faith; and, except
as disclosed in the Registration Statement and the Prospectus,
there is no tax deficiency which has been or might reasonable be
expected to be asserted or threatened against the Company or any
subsidiary;
() each of the Company and its subsidiaries owns, possesses or
has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all
declarations and filings with, all federal, state, local and other
governmental authorities (including foreign regulatory agencies),
all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as the
case may be, and to operate its properties and to carry on its
business as conducted as of the date hereof, and neither the
Company nor any such subsidiary has received any actual notice of
any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
authorization, except as described in the Registration Statement
and the Prospectus; and each of the Company and its subsidiaries is
in compliance with all laws and regulations relating to the conduct
of its business as conducted as of the date hereof;
() there are no existing or, to the best knowledge of the
Company, threatened labor disputes with the employees of the
Company or any of its subsidiaries which are likely to have a
material adverse effect on the Company and its subsidiaries taken
as a whole;
() the Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have
received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole;
() in the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on
the business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the
basis of such review, the Company has reasonably concluded that
such associated costs and liabilities would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
() each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as
amended, ("ERISA") that is maintained, administered or contributed
to by the Company or any of its affiliates for employees or former
employees of the Company and its affiliates has been maintained in
compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited
to ERISA and the Internal Revenue Code of 1986, as amended,
("Code"). No prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975 of the Code has occurred with respect
to any such plan excluding transactions effected pursuant to a
statutory or administrative exemption. For each such plan which is
subject to the funding rules of Section 412 of the Code or Section
302 of ERISA no "accumulated funding deficiency" as defined in
Section 412 of the Code has been incurred, whether or not waived,
and the fair market value of the assets of each such plan
(excluding for these purposes accrued but unpaid contributions)
exceeded the present value of all benefits accrued under such plan
determined using reasonable actuarial assumptions.
. The Company covenants and agrees with each of the several
Underwriters as follows:
() to file the Prospectus in a form approved by you pursuant
to Rule 424 under the Securities Act not later than the
Commission's close of business on the second Business Day following
the date of determination of the offering price of the Securities
or, if applicable, such earlier time as may be required by Rule
424(b);
() to deliver to each Representative and counsel for the
Underwriters, at the expense of the Company, a signed copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated
by reference therein and, during the period mentioned in paragraph
(e) below, to each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as you may reasonably
request;
() from the date hereof and prior to the Closing Date, to
furnish to you a copy of any proposed amendment or supplement to
the Registration Statement or the Prospectus, for your review, and
not to file any such proposed amendment or supplement to which you
reasonably object;
() to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities,
and during such same period, to advise you promptly, and to confirm
such advice in writing, (i) when any amendment to the Registration
Statement shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the initiation or threatening of any proceeding for that purpose,
and (iv) of the receipt by the Company of any notification with
respect to any suspension of the qualification of the Securities
for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its best
efforts to prevent the issuance of any such stop order or
notification and, if issued, to obtain as soon as possible the
withdrawal thereof;
() if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur as a result of which it is necessary
to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of the Company, to
the Underwriters and to the dealers (whose names and addresses you
will furnish to the Company) to which Securities may have been sold
by you on behalf of the Underwriters and to any other dealers upon
request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law; the opinion of counsel for the
Underwriters described above shall be rendered to the Underwriters
at the request of the Company and shall so state therein;
() to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to continue such qualification in
effect so long as reasonably required for distribution of the
Securities; provided that the Company shall not be required to file
a general consent to service of process in any jurisdiction;
() to make generally available to its security holders and to
you as soon as practicable an earnings statement covering a period
of at least twelve months beginning with the first fiscal quarter
of the Company occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder;
() so long as the Securities are outstanding, to furnish to
you copies of all reports or other communications (financial or
other) furnished to holders of Securities, and copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange;
() during the period beginning on the date hereof and
continuing [to and including the Business Day following the Closing
Date], not to offer, sell, contract to sell or otherwise dispose of
any debt securities of or guaranteed by the Company which are
substantially similar to the Securities;
() to use the net proceeds received by the Company from the
sale of the Securities pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds";
[() to use its best efforts to list, subject to notice of
issuance, the Securities on the New York Stock Exchange (the
"Exchange")];
() whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay
or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including without
limiting the generality of the foregoing, all costs and expenses
(i) incident to the preparation, issuance, execution,
authentication and delivery of the Securities, including any
expenses of the Trustee, (ii) incident to the preparation, printing
and filing under the Securities Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in each
case all exhibits, amendments and supplements thereto), (iii)
incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under
the laws of such jurisdictions as the Underwriters may designate
(including fees of counsel for the Underwriters and their
disbursements), [(iv) in connection with the listing of the
Securities on the New York Stock Exchange], (v) related to any
filing with National Association of Securities Dealers, Inc., (vi)
in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Indenture,
the Preliminary and Supplemental Blue Sky Memoranda and any Legal
Investment Survey and the furnishing to Underwriters and dealers of
copies of the Registration Statement and the Prospectus, including
mailing and shipping, as herein provided, (vii) payable to rating
agencies in connection with the rating of the Securities, (viii)
any expenses incurred by the Company in connection with a "road
show" presentation to potential investors and (ix) the cost and
charges of any transfer agent.
. The several obligations of the Underwriters hereunder shall
be subject to the following conditions:
() the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date as if
made on and as of the Closing Date and the Company shall have
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
() the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed
for such filing by the rules and regulations under the Securities
Act; no stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose
shall be pending before or threatened by the Commission; and all
requests for additional information on the part of the Commission
shall have been complied with to your satisfaction;
() subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii)
any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed
by the Company by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule
436(g)(2) under the Securities Act;
() since the respective dates as of which information is given
in the Prospectus there shall not have been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a material adverse change, in or affecting the general
affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which in the judgment
of the Representative[s] makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities
on the terms and in the manner contemplated in the Prospectus; and
neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order to decree, otherwise
than as set forth or contemplated in the Prospectus;
() the Representative[s] shall have received on and as of the
Closing Date a certificate of an executive officer of the Company,
with specific knowledge about the Company's financial matters,
satisfactory to you to the effect set forth in subsections (a)
through (c) (with respect to the respective representations,
warranties, agreements and conditions of the Company) of this
Section and to the further effect that there has not occurred any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
taken as a whole from that set forth or contemplated in the
Registration Statement.
() Xxxx Xxxxx, General Counsel for the Company, shall have
furnished to you their written opinion, dated the Closing Date, in
form and substance satisfactory to you, to the effect that:
() the Company has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented;
() the Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business,
so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have
a material adverse effect on the Company and its subsidiaries
taken as a whole;
() each of the Company's subsidiaries has been
duly incorporated and is validly existing as a corporation
under the laws of its jurisdiction of incorporation with power
and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and has
been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified
and in good standing would not have a material adverse effect
on the Company and its subsidiaries taken as a whole; and all
of the issued shares of capital stock of each subsidiary have
been duly and validly authorized and issued, are fully paid
and non-assessable, and (except in the case of foreign
subsidiaries, for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
() other than as set forth or contemplated in
the Prospectus, there are no legal or governmental
investigations, actions, suits or proceedings pending or, to
the best of such counsel's knowledge, threatened against or
affecting the Company or any of its subsidiaries or any of
their respective properties or to which the Company or any of
its subsidiaries is or may be a party or to which any property
of the Company or its subsidiaries is or may be the subject;
to the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others; and such counsel does not know of any
statutes, regulations, contracts or other documents that are
required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described
as required;
() this Agreement has been duly authorized,
executed and delivered by the Company;
() the Securities have been duly authorized,
executed and delivered by the Company and, when duly
authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute
valid and binding obligations of the Company entitled to the
benefits provided by the Indenture;
() the Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid
and binding instrument of the Company; and the Indenture has
been duly qualified under the Trust Indenture Act;
() neither the Company nor any of its
subsidiaries is, or with the giving of notice or lapse of time
or both would be, in violation of or in default under, its
Certificate of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which it or any of them
or any of their respective properties is bound; the issue and
sale of the Securities and the performance by the Company of
its obligations under the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will any such
action result in any violation of the provisions of the
Certificate of Incorporation, or the By-Laws of the Company or
any applicable law or statute or any order, rule or regulation
of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of
their respective properties;
() no consent, approval, authorization, order,
license, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale
of the Securities or the consummation of the other
transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been
obtained under the Securities Act and the Trust Indenture Act
and as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the
Securities by the Underwriter;
() the statements in the Prospectus under
"Description of the Debt Securities" and "Plan of
Distribution", in the Prospectus incorporated by reference
from item 3 of Part 1 of the Company's Annual Report on Form
10-K for the year ended December 31, 1996 and in the
Registration Statement in Item 15, insofar as such statements
constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents or proceedings;
() such counsel (A) is of the opinion that each
document incorporated by reference in the Registration
Statement and the Prospectus as amended or supplemented (other
than the financial statements and related schedules therein,
as to which such counsel need express no opinion) complied as
to form when filed with Commission in all material respects
with the Exchange Act, and the rules and regulations of the
Commission thereunder, (B) believes that (except for the
financial statements included therein as to which such counsel
need express no belief) each part of the registration
statement (including the documents incorporated by reference
therein) filed with the Commission pursuant to the Securities
Act relating to the Securities, when such part became
effective, did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (C) is of the opinion that the Registration
Statement and the Prospectus and any amendments and
supplements thereto (except for the financial statement
included therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture Act
and (D) believes that (except for the financial statements
included therein as to which such counsel need express no
belief) the Registration Statement and the Prospectus, on the
date of this Agreement, did not contain any untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, and that the Prospectus as amended or
supplemented, if applicable, does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
() the Company is not, and after giving effect
to the offering and sale of the Securities will not be, an
"investment company" or entity "controlled" by an "investment
company", as such terms are defined in the Investment Company
Act;
() each of the Company and its subsidiaries
owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings
with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all self-
regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case
may be, and to operate its properties and to carry on its
business as conducted as of the date hereof, and neither the
Company nor any such subsidiary has received any actual notice
of any proceeding relating to revocation or modification of
any such license, permit, certificate, consent, order,
approval or other authorization, except as described in the
Registration Statement and the Prospectus; and each of the
Company and its subsidiaries is in compliance with all laws
and regulations relating to the conduct of its business as
conducted as of the date of the Prospectus;
() each of the Company and its subsidiaries
owns, possesses or has the right to use the Intellectual
Property employed by it in connection with the business
conducted by it as of the date hereof;
() the Company and its subsidiaries have good
and marketable title in fee simple to all real property and
good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances
and defects except such as are described or referred to in the
Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them
under valid, existing and enforceable leases with such
exceptions as are not material and do not interfere with the
use made or proposed to be made of such property and buildings
by the Company or its subsidiaries; and
() each of the Company and its subsidiaries is
in compliance with all Environmental Laws, except, in each
case, where noncompliance, individually or in the aggregate,
would not have a material adverse effect on the Company and
its subsidiaries taken as a whole;
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of
the United States and the States of Massachusetts and Delaware, to
the extent such counsel deems proper and to the extent specified in
such opinion, if at all, upon an opinion or opinions (in form and
substance reasonably satisfactory to Underwriters' counsel) of
other counsel reasonably acceptable to the Underwriters' counsel,
familiar with the applicable laws; (B) as to matters of fact, to
the extent such counsel deems proper, on certificates of
responsible officers of the Company and certificates or other
written statements of officials of jurisdictions having custody of
documents respecting the corporate existence or good standing of
the Company and its subsidiaries. The opinion of such counsel for
the Company shall state that the opinion of any such other counsel
upon which they relied is in form satisfactory to such counsel and,
in such counsel's opinion, the Underwriters and such counsel are
justified in relying thereon. With respect to the matters to be
covered in subparagraph (xi) above, counsel may state their opinion
and belief is based upon their participation in the preparation of
the Registration Statement and the Prospectus and any amendment or
supplement thereto but is without independent check or verification
except as specified.
() on the date hereof and on the Closing Date, Coopers &
Xxxxxxx LLP shall have furnished to you letters, dated such date,
in form and substance satis factory to you, containing statements
and information of the type customarily included in accountants
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus;
() you shall have received on and as of the Closing Date an
opinion of [Cravath, Swaine & Xxxxx], counsel to the Underwriters,
with respect to the validity of the Indenture and the Securities
and other related matters as the Representative[s] may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass
upon such matters; [and]
[() the Securities shall have been approved for listing on
the New York Stock Exchange, subject to official notice of
issuance; and]
() on or prior to the Closing Date, the Company shall have
furnished to the Representative[s] such further certificates and
documents as the Representative[s] shall reasonably request.
. The Company agrees to indemnify and hold harmless each
Underwriter, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Securities and each person, if
any, who controls any Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including
without limitation the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted)
caused by any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or
caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages
or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representative[s] expressly for
use therein.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement and each person who controls the Company
within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Representative[s] expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnity
may be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, upon request of the Indemnified Person, shall
retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person
may designate in such proceeding and shall pay the fees and expenses of
such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties)
include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they
are incurred. Any such separate firm for the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the
distribution of the Securities and such control persons of Underwriters
shall be designated in writing by the first of the named
Representative[s] on Schedule I hereto and any such separate firm for
the Company, its directors, its officers who sign the Registration
Statement and such control persons of the Company or authorized
Representative[s] shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by
the third sentence of this paragraph, the Indemnifying Person agrees
that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such Indemnifying Person of the aforesaid
request and (ii) such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of
such settlement. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on
claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable to an Indemnified Person in
respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering of
the Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the
net proceeds from the offering of such Securities (before deducting
expenses) received by the Company and the total underwriting discounts
and the commissions received by the Underwriters bear to the aggregate
public offering price of the Securities. The relative fault of the
Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal
or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 7, in no event shall an Underwriter be
required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant
to this Section 7 are several in proportion to the respective principal
amount of the Securities set forth opposite their names in Schedule I
hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company set
forth in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its
officers or directors or any other person controlling the Company and
(iii) acceptance of and payment for any of the Designated Securities.
. Notwithstanding anything herein contained, this Agreement
may be terminated in the absolute discretion of the Representative[s],
by notice given to the Company, if after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall
have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board
Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of or guaranteed by the Company
shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in
New York shall have been declared by either Federal or New York State
authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Representative[s], is
material and adverse and which, in the judgment of the
Representative[s], makes it impracticable to market the Designated
Securities on the terms and in the manner contemplated in the
Prospectus.
. If, on the Closing Date, any one or more of the
Underwriters shall fail or refuse to purchase Securities which it or
they have agreed to purchase under this Agreement, and the aggregate
principal amount of Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Securities, the other
Underwriters shall be obligated severally in the proportions that the
principal amount of Securities set forth opposite their respective names
in Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representative[s] may
specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date;
provided that in no event shall the principal amount of Securities that
any Underwriter has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 9 by an amount in excess of one-ninth
of such principal amount of Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the
aggregate principal amount of Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount
of Securities to be purchased, and arrangements satisfactory to you and
the Company for the purchase of such Securities are not made within 36
hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company.
In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
. If this Agreement shall be terminated by the Underwriters,
or any of them, because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company shall be unable to
perform its obligations under this Agreement or any condition of the
Underwriters' obligations cannot be fulfilled, the Company agrees to
reimburse the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for all out-of-
pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this
Agreement or the offering of Securities.
. This Agreement shall inure to the benefit of and be binding
upon the Company, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Securities, the Underwriters, any
controlling persons referred to herein and their respective successors
and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No
purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
. Any action by the Underwriters hereunder may be taken by
you jointly or by the first of the named Representative[s] set forth in
Schedule I hereto alone on behalf of the Underwriters, and any such
action taken by you jointly or by the first of the named
Representative[s] set forth in Schedule I hereto alone shall be binding
upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in
Schedule II hereto. Notices to the Company shall be given to it at
Millipore Corporation, 00 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000,
(facsimile:[ ]); Attention:[ ]
. This Agreement may be signed in counterparts, each of which
shall be an original and all of which together shall constitute one and
the same instrument.
. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect
to the conflicts of laws provisions thereof.
Very truly yours,
MILLIPORE CORPORATION,
by
______________________________
Name:
Title:
Accepted: , 1997
X. X. XXXXXX SECURITIES INC.
[CO-MANAGER]
Acting severally on behalf of
themselves and the several
Underwriters listed in Schedule II
hereto.
by: X. X. XXXXXX SECURITIES INC.
by: ___________________________
Name:
Title:
SCHEDULE I
Representative[s]: X. X. XXXXXX SECURITIES INC.
[Co-Manager]
Underwriting Agreement
dated: _________________________________________
Registration Statement
No.: _________________________________________
Title of Securities: _________________________________________
Aggregate principal
amount: $________________________________________
Price to Public : __% of the principal amount of the Securities,
plus accrued interest, if any, from _______, 19__ to the
Closing Date.
Indenture: Indenture dated as of _________ between
the Company and State Street Bank and Trust Company,
N.A., as Trustee.
Maturity: _____________________________________________
Interest Rate: _____________________________________________
Interest Payment Dates: _____________________________________________
Optional Redemption
Provisions: _____________________________________________
Sinking Fund Provisions: _____________________________________________
Other Provisions: _____________________________________________
Closing Date and
Time of Delivery: _____________________________________________
Closing Location: ______________________________________________
Address for Notices
to Underwriters: ______________________________________________
SCHEDULE II
Underwriter Principal
Amount of
Securities
To Be
Purchased
X. X. Xxxxxx Securities Inc. $___________
___
[Co-Manager] $___________
___
Total $
