EXHIBIT 1.1
Form of Purchase Agreement
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WATERS CORPORATION
(a Delaware corporation)
_____________ Shares of Common Stock
PURCHASE AGREEMENT
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____________, 1996
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Waters Corporation, a Delaware corporation (the "Company" or
"Waters"), Waters Technologies Corporation ("Technologies"), a Delaware
corporation, and the persons listed in Schedule A hereto (the "Selling
Stockholders") confirm their agreement with Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated (the "Underwriter") with respect to the sale by the
Selling Stockholders and the purchase by the Underwriter, of an aggregate of
___________ shares of Common Stock, par value $.01 per share, of the Company
(the "Common Stock"), in the respective numbers set forth opposite the name of
each Selling Stockholder in Schedule A hereto to be purchased by the Underwriter
are hereinafter called the "Shares."
You have advised us that you desire to purchase the Shares.
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The initial public offering price per share for the Shares and the
purchase price per share for the Shares to be paid by the Underwriter shall be
agreed upon by the Selling Stockholders and the Underwriter, and such agreement
shall be set forth in a separate written instrument substantially in the form of
Exhibit A hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication among the Company, Technologies, the Selling Stockholders and
the Underwriter and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the Shares will be governed by this
Agreement, as supplemented by the Price Determination Agreement. From and after
the date of the execution and delivery of the Price Determination Agreement,
this Agreement shall be deemed to incorporate, and all references herein to
"this Agreement" or "herein" shall be deemed to include, the Price Determination
Agreement.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (File No.
333-____) covering the registration of the Shares under the Securities Act of
1933, as amended (the "1933 Act"), including the related preliminary
prospectus, and either (A) has prepared and proposes to file, prior to the
effective date of such registration statement, an amendment to such registration
statement, including final prospectus, or (B) if the Company has elected to
rely upon Rule 430A ("Rule 430A") of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"), will prepare and file
prospectuses, in accordance with the provisions of Rule 430A and Rule 424(b)
("Rule 424(b)") of the 1933 Act Regulations, promptly after execution and
delivery of the Price Determination Agreement. Additionally, if the Company has
elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, the
Company will prepare and file a term sheet (a "Term Sheet") in accordance with
the provisions of Rule 434 and Rule 424(b). The information, if any, included
in any prospectus that was omitted from any prospectus included in such
registration statement at the time it becomes effective but that is deemed (a)
pursuant to Rule 430A(b) to be part of such registration statement at the time
it becomes effective is referred to herein as the "Rule 430A Information," and
(b) pursuant to Rule 434 to be part of such registration statement at the time
it becomes effective is referred to herein as the "Rule 434 Information." Each
prospectus used before the time such registration statement becomes effective,
and any prospectus that omits the Rule 430A Information or the Rule 434
Information, as applicable, that is used after such effectiveness and prior to
the execution and delivery of the Price Determination Agreement is herein called
a "preliminary prospectus." Such registration statement, including the exhibits
thereto, as amended at the time it becomes effective and including, if
applicable, the Rule 430A Information and the Rule 434 Information, is herein
called the "Original Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the
"Rule 462(b) Registration Statement," and the Original Registration Statement
and any Rule 462(b) Registration Statement are herein referred to collectively
as the "Registration Statement." The
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prospectus included in the Original Registration Statement at the time it
becomes effective is herein called a "Prospectus," except that, (y) if the final
Prospectus first furnished to the Underwriter after the execution of the Price
Determination Agreement for use in connection with the offering of the Shares
differs from the prospectus included in the Registration Statement at the time
it becomes effective (whether or not such prospectus is required to be filed
pursuant to Rule 424(b)), the term "Prospectus" shall refer to the final
Prospectus first furnished to the Underwriter for such use and (z) if Rule 434
is relied on, the term "Prospectus" shall refer to the preliminary Prospectus
last furnished to the Underwriter in connection with the offering of the Shares
together with the Term Sheet. For purposes of this Agreement, all references to
the Registration Statement, any preliminary prospectus, the Prospectus or any
Term Sheet, or any amendment or supplement to any of the foregoing, shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
The Company, Technologies and the Selling Stockholders understand that
the Underwriter proposes to make a public offering of the Shares as soon as you
deem advisable after the Registration Statement becomes effective and the Price
Determination Agreement has been executed and delivered.
Section 1. Representations and Warranties. (a) The Company and
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Technologies, jointly and severally, represent and warrant to and agree with the
Underwriter that:
(i) At the time the Registration Statement becomes effective, and
if the Company has elected to rely upon Rule 430A, on the date of the Price
Determination Agreement, and on the effective or issue date of each
amendment or supplement to the Registration Statement or the Prospectus,
and at the Closing Time referred to below, (A) the Registration Statement
and any amendments and supplements thereto will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations; (B) neither the Registration Statement nor any amendment or
supplement thereto will contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; (C) neither the Prospectus nor
any amendment or supplement to either of them will include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and (D) if Rule 434 is relied
upon, the Prospectus shall not be "materially different," as such term is
used in Rule 434, from the prospectus included in the Registration
Statement at the time it becomes effective.
Notwithstanding the foregoing, this representation and warranty does not
apply to statements or omissions from the Registration Statement or the
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Prospectus or any amendments or supplements thereto made in reliance upon
and in conformity with information furnished or confirmed in writing to the
Company by or on behalf of the Underwriter expressly for use in the
Registration Statement or the Prospectus or any amendments or supplements
thereto. Each preliminary prospectus and the Prospectus delivered to the
Underwriter for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) Each of Coopers & Xxxxxxx L.L.P. and Xxxxxx Xxxxxxxx LLP,
who are reporting upon the audited consolidated financial statements and
schedules included in the Registration Statement, are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iii) The Company and Technologies have all necessary corporate
power and authority to execute, deliver and perform their respective
obligations under this Agreement and the Price Determination Agreement.
This Agreement has been, and the Price Determination Agreement on the date
thereof will be, duly authorized, executed and delivered by the Company and
Technologies.
(iv) The consolidated financial statements of the Company
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, present fairly the financial position of
the Company and its Subsidiaries (as hereinafter defined) and their
predecessors as of the dates indicated and the consolidated results of
operations, stockholders' equity and cash flows of the Company and its
Subsidiaries and their predecessors for the periods specified. The
consolidated financial statements of TA Instruments, Inc. ("TAI") included
in the Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of TAI and its
subsidiaries and their predecessors as of the dates indicated and the
consolidated results of operations, stockholders' equity and cash flows of
TAI and its subsidiaries and their predecessors for the periods specified.
The financial statements of the Company and its Subsidiaries and their
predecessors, and of TAI and its subsidiaries and predecessors, have been
prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved.
The financial statement schedules, if any, included in the Registration
Statement present fairly in accordance with GAAP the information required
to be stated therein and have been compiled on a basis consistent with that
of the audited consolidated financial statements included in the
Registration Statement. The selected financial data included in the
Prospectus present fairly in accordance with GAAP the information shown
therein and have been compiled on a basis consistent with that of the
audited consolidated financial statements included in the Registration
Statement. The pro forma financial statements and other pro forma
financial information included in the Prospectus present fairly the
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information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma bases described
therein, and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein.
(v) The Company and Technologies are corporations duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware with the requisite corporate power and authority under
such laws to own, lease and operate their respective properties and to
conduct their respective business as described in the Prospectus and to
enter into and perform its obligations under this Agreement and the Price
Determination Agreement; and the Company is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to
the extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the condition (financial and otherwise),
earnings, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise.
(vi) The Company's only direct and indirect subsidiaries are
listed on Schedule B hereto (collectively, the "Subsidiaries"). The
Company's only subsidiaries which had, at December 31, 1995, assets in
excess of 5% of the consolidated assets of the Company and its
subsidiaries, considered as one enterprise, or had, for the twelve months
then ended, net sales in excess of 5% of the consolidated net sales of the
Company and its subsidiaries, considered as one enterprise, for such period
are listed on Schedule C hereto (collectively, "Material Subsidiaries").
For purposes of the definition of "Material Subsidiary", any subsidiary or
assets acquired after December 31, 1995 shall be deemed to have been
acquired as of January 1, 1995. Each Material Subsidiary is a corporation
duly incorporated, validly existing and in good standing under the laws of
the jurisdiction of its incorporation with the requisite corporate power
and authority under such laws to own, lease and operate its properties and
conduct its business as described in the Prospectus; and each Material
Subsidiary is duly qualified to transact business as a foreign corporation
and is in good standing in each other jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that would
make such qualification necessary, except to the extent that the failure to
so qualify or be in good standing would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one
enterprise. Except as disclosed in the Prospectus, all of the outstanding
shares of capital stock of each Material Subsidiary have been duly
authorized and validly
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issued and are fully paid and non-assessable, and are owned by the Company,
directly or through one or more Material Subsidiaries, free and clear of
any pledge, lien, security interest, charge, claim, mortgage or encumbrance
of any kind; and none of the outstanding shares of capital stock of the
Material Subsidiaries was issued in violation of the preemptive or other
similar rights of any stockholder of such corporation.
(vii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled
"Actual" under the caption "Capitalization," and the Shares will conform in
all material respects to the description thereof contained under the
caption "Description of Capital Stock" in the Prospectus.
(viii) The Shares to be sold pursuant to this Agreement have
been duly authorized by the Company and are validly issued, fully paid and
non-assessable; and such Shares are not subject to the preemptive or other
similar rights of any stockholder of the Company.
(ix) Except as disclosed in the Prospectus, there are no
outstanding options, warrants or other rights calling for issuance of, and
no commitments, obligations, plans or arrangements to issue, any shares of
capital stock of the Company or any of its Subsidiaries or any security
convertible into or exchangeable for capital stock of the Company or any of
its Subsidiaries.
(x) All of the issued and outstanding shares of capital stock of
the Company, including the Shares to be sold by the Selling Stockholders
pursuant to this Agreement, have been duly authorized and validly issued
and are fully paid and non-assessable; and none of the outstanding shares
of capital stock of the Company was issued in violation of the preemptive
or other similar rights of any stockholder of the Company.
(xi) Except as described in the Prospectus, since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there has not been (A) any material adverse change in the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (B)
any transaction entered into by the Company or any Subsidiary, other than
in the ordinary course of business, that is material to the Company and its
Subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company or
Technologies on any class of its respective capital stock.
(xii) Neither the Company nor any Material Subsidiary is in
violation of its charter or by-laws or in default in the performance or
observance of
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any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject, except as
disclosed in the Prospectus and except for such defaults that would not in
the aggregate have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its Subsidiaries, considered as one enterprise. The execution, delivery
and performance of this Agreement, the Price Determination Agreement and
the Custody Agreements and Powers of Attorney among the Company, each of
the Selling Stockholders, The First National Bank of Boston, as Depositary
and the Attorneys-in-Fact named therein, as Attorneys-in-Fact for the
Selling Stockholders (all such agreements collectively, the "Custody
Agreement and Power of Attorney"), by the Company or Technologies, as the
case may be, the consummation of the transactions contemplated in this
Agreement and the Registration Statement and compliance by the Company or
Technologies, as the case may be, with the foregoing have been duly
authorized by all necessary corporate action on the part of the Company or
Technologies, as the case may be, and do not and will not result in any
violation of the charter or by-laws of the Company or any Material
Subsidiary, and do not and will not conflict with, or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien or encumbrance
upon any property or assets of the Company or any Material Subsidiary under
(A) any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company, or any Material Subsidiary is a party or by which any of them is
bound or to which any of their respective properties or assets are subject,
or (B) any applicable law, statute, rule, regulation, judgment, order,
writ, injunction or decree of any government, governmental instrumentality
or court, domestic or foreign, having jurisdiction over the Company or any
Material Subsidiary or any of their respective properties, assets or
operations, except for conflicts, breaches, violations, defaults, liens or
encumbrances under clause (A) or (B) which would not have, individually or
in the aggregate, a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its Subsidiaries, considered as one enterprise.
(xiii) No authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court (other than as required under the 1933 Act, the
1934 Act, the 1933 Act Regulations, the 1934 Act Regulations and the
securities or blue sky laws of the various states in connection with the
sale of the Shares) is necessary in connection with the due authorization,
execution, delivery and performance of this Agreement, the Price
Determination Agreement and the Custody Agreement and Power of Attorney by
the Company or Technologies, as the case may be, for the
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sale and delivery of the Shares or the consummation by the Company and
Technologies of the transactions contemplated in this Agreement except such
as have been obtained.
(xiv) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any Subsidiary that is required to be disclosed in the Registration
Statement or Prospectus.
(xv) There are no contracts or documents of a character required
to be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not so described
or filed (including filings deemed made by incorporation by reference).
(xvi) The Company and each of its Material Subsidiaries are in
compliance with, and each such entity has not received any notice of any
outstanding violation of, all laws, ordinances, rules, regulations,
judgments, decrees, orders and statutes applicable to it and its operations
except, in either case, where any failure by the Company or any Material
Subsidiary to comply with any such law, regulation, ordinance or rule would
not have, individually or in the aggregate, a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one
enterprise.
(xvii) The Company and each of its Material Subsidiaries have
good and marketable title to all properties and assets owned by them, free
and clear of all liens, encumbrances or restrictions, except such as (A)
are described in the Prospectus or (B) do not materially impair or
interfere with the current use made of such properties or (C) are neither
material in amount nor materially significant, in each case in relation to
the business of the Company and its Subsidiaries, considered as one
enterprise; all of the leases and subleases material to the businesses of
the Company and its Subsidiaries, considered as one enterprise, and under
which the Company or any Material Subsidiary holds properties described in
the Prospectus, are in full force and effect except to the extent that such
failure would not have, individually or in the aggregate, a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise and, except as disclosed in the Prospectus,
neither the Company nor any Material Subsidiary has received any notice of
any claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any Material Subsidiary under any of the leases or
subleases mentioned above or affecting or questioning the rights of the
Company or any Material Subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease, which
claims, in the
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aggregate, might be expected to have, individually or in the aggregate, a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise.
(xviii) The Company and each of its Material Subsidiaries own or
possess all foreign and domestic governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
(collectively, "Governmental Licenses") necessary to own or lease, as the
case may be, and to operate its properties and to carry on its business as
presently conducted, except where the failure to own or possess such
Governmental Licenses could not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise; all of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would
not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its Subsidiaries, considered as one enterprise; and neither the Company
nor any Material Subsidiary has received any notice of proceedings relating
to revocation or modification of any such Governmental Licenses that,
singly or in the aggregate, could reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise.
(xix) The Company and each of its Material Subsidiaries own or
possess, or can acquire on reasonable terms, adequate foreign and domestic
patents, patent rights, licenses, trademarks, service marks, trade names,
inventions, copyrights and know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) (collectively, "intellectual property") necessary to
carry on their businesses as presently conducted except to the extent that
the failure to obtain such intellectual property could reasonably be
expected to have, individually or in the aggregate, a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its Subsidiaries,
considered as one enterprise, and neither the Company nor any of its
Material Subsidiaries has received any notice of any infringement of or
conflict with asserted rights of others with respect to any intellectual
property which would render any intellectual property invalid or inadequate
to protect the interest of the Company or any Material Subsidiaries therein
and which infringement or conflict, singly or in the aggregate, could
reasonably be expected to have a material adverse effect on the
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condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise.
(xx) The Company and each of its Material Subsidiaries comply
with all Environmental Laws (as defined below) except to the extent that
failure to comply with such Environmental Laws would not have, individually
or in the aggregate, a material adverse effect on the condition (financial
or otherwise), earnings, business affairs or business prospects of the
Company and its Subsidiaries, considered as one enterprise. Except as
disclosed in the Prospectus, neither the Company nor any of its Material
Subsidiaries (i) is the subject of any pending or, to the knowledge of the
Company, threatened federal, state or local investigation evaluating
whether any remedial action by the Company or any Material Subsidiary is
needed to respond to a release of any Hazardous Materials (as defined
below) into the environment, resulting from the Company's or any of its
Material Subsidiaries' business operations or ownership or possession of
any of their properties or assets or (ii) is in contravention of any
Environmental Laws that, in the case of (i) or (ii), might be expected to
have, individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise. Neither the Company nor any Material Subsidiary has received
any notice or claim, nor are there pending or, to the knowledge of the
Company, threatened lawsuits against them, with respect to violations of an
Environmental Law or in connection with any release of any Hazardous
Material into the environment that, individually or in the aggregate, are
expected to have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its Subsidiaries, considered as one enterprise. As used herein,
"Environmental Laws" means any foreign, federal, state or local law or
regulation applicable to the Company's or any of its Material Subsidiaries'
business operations or ownership or possession of any of their properties
or assets relating to environmental matters, and "Hazardous Materials"
means those substances that are regulated by or form the basis of liability
under any Environmental Laws.
(xxi) No labor dispute exists with the Company's employees or
with employees of its Material Subsidiaries or, to the knowledge of the
Company, is imminent that could reasonably be expected to materially and
adversely affect the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its Subsidiaries,
considered as one enterprise; the Company is not aware of any existing or
imminent labor disturbance by the employees of its principal suppliers
which could reasonably be expected to result in any material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one
enterprise; and the Company is in compliance with all
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applicable federal, state, and local laws relating to the payment of wages
to employees (including, without limitation, the Fair Labor Standards Act,
as amended), except insofar as the failure to comply with such laws would
not reasonably be expected to result in any material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise.
(xxii) Neither the Company nor any of its affiliates has taken
or will take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or manipulation
of the price of the Common Stock; and neither the Company nor any of its
affiliates has distributed or will distribute any prospectus (as such term
is defined in the 1933 Act and the 1933 Act Regulations) in connection with
the offering and sale of the Shares other than any preliminary prospectus
filed with the Commission or the Prospectus or other material permitted by
the 1933 Act or the 1933 Act Regulations.
(xxiii) All United States federal income tax returns of the
Company and the Material Subsidiaries required by law to be filed have been
filed and all taxes shown by such returns or otherwise assessed, which are
due and payable, have been paid, except for such taxes or tax assessments,
if any, as are being contested in good faith and as to which adequate
reserves, to the extent required by GAAP, have been provided. All other
tax returns (including franchise and income tax returns) of the Company and
the Material Subsidiaries required to be filed pursuant to applicable
foreign, state or local law have been filed, except insofar as the failure
to file such returns would not have, individually or in the aggregate, a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise, and all taxes shown on such
returns or otherwise assessed which are due and payable have been paid,
except for such taxes or tax assessments, if any, as are being contested in
good faith and as to which adequate reserves, to the extent required by
GAAP, have been provided. The charges, accruals and reserves on the books
of the Company and the Material Subsidiaries in respect of any income and
corporate franchise tax liability for any years not finally determined or
with respect to which the applicable statute of limitations has not expired
are believed to be adequate to meet any assessments or re-assessments for
additional income or corporate franchise tax for any years not finally
determined.
(xxiv) The Company has obtained the written agreements of each
Selling Stockholder and executive officer, in the form previously furnished
to you, that, for a period of 90 days, such parties will not, without the
prior written consent of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"), directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, or exercise any
registration rights with respect to, any shares of Common Stock or
securities or rights convertible into or exercisable or exchangeable for
Common
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Stock other than the sale of the Shares pursuant to this Agreement and the
option of the executive officers to sell 160,000 shares, in the aggregate.
The Company has waived, and has obtained the written waivers by the holders
of a majority of each of the AEA Registrable Securities and the Xxxx
Registrable Securities (as such terms are defined in the Registration
Rights Agreement, dated as of August 18, 1994, among the Company and
certain of its stockholders (the "Registration Rights Agreement")) of, any
and all of their respective rights under each of Sections 1(a) (in
connection with their right to receive written notice) and 2(e) (in
connection with the restriction on a registered offering by the Company
within six months of another registered offering) under the Registration
Rights Agreement.
(xxv) There are no holders of securities (debt or equity) of the
Company or any of the Subsidiaries, or holders of rights (including,
without limitation, preemptive rights), warrants or options to obtain
securities of the Company or its Subsidiaries, who have the right to
request the Company or any of the Subsidiaries to register securities held
by them under the 1933 Act, other than holders who have waived such rights
or will not have such rights for the 180 days after the date hereof.
(xxvi) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
and specific authorizations; (ii) transactions are recorded as necessary to
permit preparations of financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorizations;
and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxvii) Neither the Company nor any of its Subsidiaries is an
investment company or is controlled by an investment company or investment
companies within the meaning of the Investment Company Act of 1940, as
amended.
(xxviii) The Company has all necessary corporate power and
authority to execute, deliver and perform its obligations under the Custody
Agreement and Power of Attorney; and the Custody Agreement and Power of
Attorney has been duly authorized, executed and delivered by the Company
and constitutes the valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting enforcement
of creditors' rights generally or by general principles of equity.
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(b) Each Selling Stockholder, severally and not jointly, represents
and warrants to, and agrees with, the Underwriter as follows:
(i) At the time the Registration Statement becomes effective, and
at all times subsequent thereto up to the Closing Time, (A) the information
furnished in writing by or on behalf of such Selling Stockholder expressly
for use in the Registration Statement and any amendments and supplements
thereto do not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements regarding such Selling Stockholder therein not misleading
and (B) the information furnished in writing by or on behalf of such
Selling Stockholder expressly for use in the Prospectus does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements regarding such Selling
Stockholder therein, in the light of the circumstances under which they
were made, not misleading.
(ii) Such Selling Stockholder has full right, power and authority
to execute, deliver and perform its obligations under this Agreement, the
Price Determination Agreement and the Custody Agreement and Power of
Attorney, and to sell, transfer and deliver the Shares pursuant to this
Agreement; and this Agreement and the Custody Agreement and Power of
Attorney have been, and the Price Determination Agreement on the date
thereof will be, duly authorized, executed and delivered by or on behalf of
such Selling Stockholder and a valid and binding agreement of such Selling
Stockholder, enforceable against such Selling Stockholder in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to or affecting
enforcement of creditors' rights generally or by general principles of
equity.
(iii) There is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or foreign, now
pending or, to the knowledge of such Selling Stockholder, threatened, to
which such Selling Stockholder is or would be a party or of which the
property of such Selling Stockholder is or may be subject, that (i) seeks
to restrain, enjoin, prevent the consummation of or otherwise challenge the
sale of Shares by such Selling Stockholder or any of the other transactions
contemplated hereby or (ii) questions the legality or validity of any such
transactions or seeks to recover damages or obtain other relief in
connection with any such transactions.
(iv) No authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court (other than under the 1933 Act and the 1933 Act
Regulations and the securities or blue sky laws of the various states in
connection with the sale of the Offered Shares), domestic or foreign, is
required by reason of
13
facts specifically pertaining to such Selling Stockholder or its legal or
regulatory status in connection with the due authorization, execution and
delivery by such Selling Stockholder of this Agreement, the Price
Determination Agreement or the Custody Agreement and Power of Attorney and
the valid sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder and thereunder.
(v) The execution, delivery and performance of this Agreement,
the Price Determination Agreement and the Custody Agreement and Power of
Attorney by such Selling Stockholder, the sale of the Shares by such
Selling Stockholder hereunder and thereunder, the consummation by such
Selling Stockholder of the transactions herein and therein contemplated and
the compliance by such Selling Stockholder with all the provisions of this
Agreement, the Price Determination Agreement and the Custody Agreement and
Power of Attorney will not result in a violation of the charter or bylaws
of such Selling Stockholders which are corporations or the partnership
agreement or certificate of limited partnership, if applicable, of such
Selling Stockholders which are partnerships and will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any material agreement or instrument to which
such Selling Stockholder is a party or by which such Selling Stockholder is
bound, nor will such action result in any violation of the provisions of
any statute relating to such Selling Stockholders or its legal or
regulatory status or any judgment, order, rule or regulation of any court
or governmental agency or body having jurisdiction over such Selling
Stockholder.
(vi) Such Selling Stockholder has, and will at the Closing Time
have, valid and marketable title to the Shares to be sold by the Selling
Stockholder pursuant to this Agreement, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind; and,
at the Closing Time, upon delivery of the Shares to be sold by such Selling
Stockholder and payment of the purchase price therefor as contemplated in
this Agreement, the Underwriter will receive good and marketable title to
the Shares purchased by it from such Selling Stockholder, free and clear of
any pledge, lien, security interest, charge, claim, equity or encumbrance
of any kind.
(vii) Certificates for all of the Shares to be sold by such
Selling Stockholder pursuant to this Agreement, in suitable form for
transfer by delivery or accompanied by duly executed instruments of
transfer or assignment in blank with signatures guaranteed, have been
placed in custody with The First National Bank of Boston for delivery to
the Underwriters pursuant to this Agreement.
(viii) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to, or that might reasonably be
expected
14
to, cause or result in stabilization or manipulation of the price of the
Common Stock; and such Selling Stockholder has not distributed and will not
distribute any prospectus (as such term is defined in the 1933 Act and the
1933 Act Regulations) in connection with the offering and sale of the
Shares other than any preliminary prospectus filed with the Commission or
the Prospectus or other material permitted by the 1933 Act or the 1933 Act
Regulations.
(c) Any certificate signed by any officer of the Company and delivered
to you or to Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx as counsel for the
Underwriter at or prior to the Closing Time pursuant to this Agreement or the
transactions contemplated hereby shall be deemed a representation and warranty
by the Company to the Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Stockholders as such and
delivered to you or to counsel for the Underwriter at or prior to the Closing
Time pursuant to the terms of this Agreement or the transactions contemplated
hereby shall be deemed a representation and warranty by such Selling
Stockholders to the Underwriter, as to the matters covered thereby.
Section 2. Sale and Delivery to the Underwriter; Closing. (a) On
---------------------------------------------
the basis of the representations and warranties herein contained, and subject to
the terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to the Underwriter, and the Underwriter
agrees to purchase from each Selling Stockholder, at the purchase price per
share set forth in the Price Determination Agreement, the number of Shares being
sold by each such Selling Stockholder set forth on Schedule A opposite the name
of each such Selling Stockholder.
(b) If the Company has elected not to rely upon Rule 430A, the public
offering price per share for the Shares and the purchase price per share for the
Shares to be paid by the Underwriter shall be agreed upon and set forth in the
Price Determination Agreement, dated the date hereof, and an amendment to the
Original Registration Statement containing such per share price information will
be filed before the Original Registration Statement becomes effective.
(c) If the Company has elected to rely upon Rule 430A, the public
offering price per share for the Shares and the purchase price per share for the
Shares to be paid by the Underwriter shall be agreed upon and set forth in the
Price Determination Agreement. In the event that the Price Determination
Agreement has not been executed by the close of business on the fourteenth
business day following the later of the date on which the Original Registration
Statement and any Rule 462(b) Registration Statement becomes effective, this
Agreement shall terminate forthwith, without liability of any party to any other
party except that Sections 6, 7 and 8 shall remain in effect.
15
(d) Payment of the purchase price for, and delivery of certificates
for, the Initial Shares shall be made at the offices of Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as shall be agreed upon by the Company, the Selling Stockholders and
you, at 9:00 A.M. either (i) on the third or fourth full business day after the
later of the effective date of the Original Registration Statement and any Rule
462(b) Registration Statement (in either case, as permitted under Rule 15c6-1
under the Securities Exchange Act of 1934, as amended (the "1934 Act")), or (ii)
if the Company has elected to rely upon Rule 430A, on the third or fourth full
business day after execution of the Price Determination Agreement (as permitted
under Rule 15c6-1 under the 0000 Xxx) (unless, in either case, postponed
pursuant to Section 11), or at such other time not more than ten full business
days thereafter as you, the Company and the Selling Stockholders shall determine
(such date and time of payment and delivery being herein called the "Closing
Time"). Payment shall be made to the Selling Stockholders by wire transfer of
immediately available funds to a bank account designated by the Selling
Stockholders (or such other person as may be designated pursuant to the Custody
Agreement and Power of Attorney), as the case may be, against delivery to you of
certificates for the Shares to be purchased by you.
16
(e) Certificates for the Shares to be purchased by the Underwriter
shall be in such denominations and registered in such names as you may request
in writing at least one business day before the Closing Time. The certificates
for the Shares will be made available in New York City for examination and
packaging by you not later than 10:00 A.M. on the business day prior to the
Closing Time.
Section 3. Certain Covenants of the Company. The Company covenants
--------------------------------
with the Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective and, if the Company elects to rely upon Rule 430A
and subject to Section 3(b), will comply with the requirements of Rule 430A and
will notify you promptly, (i) when the Registration Statement, or any post-
effective amendment to the Registration Statement, shall have become effective,
or any supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission to amend the Registration Statement, to amend or
supplement any Prospectus or for additional information and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the Shares
for offering or sale in any jurisdiction, or of the institution or threatening
of any proceedings for any of such purposes. The Company will make every
reasonable effort to prevent the issuance of any such stop order or of any order
preventing or suspending such use and, if any such order is issued, to obtain
the lifting thereof at the earliest possible moment. If the Company elects to
rely on Rule 434 under the 1933 Act Regulations, the Company will use a term
sheet that complies with the requirements of Rule 434 under the 1933 Act
Regulations. If the Company elects not to rely on Rule 434, the Company will
provide the Underwriter with copies of the Prospectus, in such number as the
Underwriter may reasonably request, and file or transmit for filing with the
Commission such Prospectus in accordance with Rule 424(b) of the 1933 Act
Regulations by the close of business in New York on the business day immediately
succeeding the date of the Price Determination Agreement. If the Company elects
to rely on Rule 434 of the 1933 Act Regulations, the Company will provide the
Underwriter with copies of the term sheet and the remainder of the Prospectus,
in such number as the Underwriter may reasonably request, and file or transmit
for filing with the Commission a Prospectus complying with Rule 434(c)(2) of the
1933 Act Regulations in accordance with Rule 424(b) of the 1933 Act Regulations
by the close of business in New York or the business day immediately succeeding
the date of the Price Determination Agreement. If the Company uses Rule 434,
the Prospectus will not be "materially different," as such term is used in Rule
434, from the prospectus included in the Registration Statement at the time it
becomes effective.
17
(b) The Company will not at any time file or make any amendment to the
Registration Statement (including any filing under Rule 462(b)), file a Term
Sheet or file or make any amendment or supplement (i) if the Company has not
elected to rely upon Rule 430A, to the Prospectus or (ii) if the Company has
elected to rely upon Rule 430A, to the prospectus included in the Original
Registration Statement at the time it becomes effective or to the Prospectus, of
which you shall not have previously been advised and furnished a copy or to
which you or Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx as counsel for the
Underwriter shall have reasonably objected.
(c) The Company has furnished or will furnish to you and your counsel,
without charge, one signed copy of the Registration Statement as originally
filed and of all amendments thereto (including exhibits filed therewith),
whether filed before or after the Registration Statement becomes effective, and
copies of all exhibits and documents filed therewith, and signed copies of all
accountants consents and certificates of experts, if any, and has furnished or
will furnish to you one conformed copy of the Registration Statement as
originally filed and each amendment thereto. If applicable, the copies of the
Registration Statement and each amendment thereto furnished to the Underwriter
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) The Company will deliver to the Underwriter, without charge, from
time to time until the later of the effective date of the Original Registration
Statement and any Rule 462(b) Registration Statement (or, if the Company has
elected to rely upon Rule 430A, until the time the Price Determination Agreement
is executed and delivered), as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
deliver to the Underwriter, without charge, as soon as the Registration
Statement shall have become effective (or, if the Company has elected to rely
upon Rule 430A, as soon as practicable after the Price Determination Agreement
has been executed and delivered) and thereafter from time to time as requested
during the period when the Prospectus is required to be delivered under the 1933
Act, such number of copies of the Prospectus (as supplemented or amended) as the
Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933
Act and the 1933 Act Regulations, and the 1934 Act and the rules and regulations
of the Commission thereunder (the "1934 Act Regulations") so as to permit the
completion of the distribution of the Shares as contemplated in this Agreement
and the Prospectus. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Shares any event shall occur
or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriter, to amend the Registration Statement or amend or
supplement any Prospectus in order that the Prospectus will not
18
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such untrue
statement or omission or to make the Registration Statement or the Prospectus
comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the
Underwriter, to qualify the Shares for offering and sale under the applicable
securities laws of such states and other jurisdictions as you may designate and
to maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Original Registration Statement and
any Rule 462(b) Registration Statement; provided, however, that neither the
-------- -------
Company nor any Subsidiary shall be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the Shares have
been qualified as above provided.
(g) The Company will timely file such reports pursuant to the 1934 Act
as are necessary in order to make generally available to its security holders as
soon as practicable an earnings statement for the purposes of, and to provide
the benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
(h) For a period of 90 days from the date hereof, the Company will
not, without the prior written consent of Xxxxxxx Xxxxx, directly or indirectly,
sell, offer to sell, grant any option for the sale of, or otherwise dispose of,
any shares of Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock, other than (i) any shares of Common Stock sold by
the Company upon the exercise of any option outstanding at the Closing Time
granted under the stock option plans of the Company existing at the Closing Time
and (ii) issuances by the Company of employee stock options pursuant to the
Company's employee stock option plans pursuant to the terms thereof as in effect
on the date hereof and the number of shares of Common Stock covered thereby.
(i) The Company will use its best efforts to maintain the listing of
the Common Stock on the New York Stock Exchange.
(j) If the Company has elected to rely upon Rule 430A, it will take
such steps as it deems necessary to ascertain promptly whether the forms of
prospectus
19
transmitted for filing under Rule 424(b) were received for filing by the
Commission and, in the event that they were not, it will promptly file such
prospectus.
(k) If the Company has elected to rely on Rule 434, it will comply
with the requirements of Rule 434, and the Prospectus will not be "materially
different," as such term is used in Rule 434, from the prospectus included in
the Registration Statement at the time it becomes effective.
(l) If the Company has elected to rely upon Rule 462(b), the Company
will file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the
1933 Act Regulations by the time confirmations are sent or given, as specified
by Rule 462(b)(2).
(m) For a period of five years after the Closing Time, the Company
will furnish to you copies of all annual reports, quarterly reports and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, and such other documents,
reports and information relating to the Company's business or finances as shall
be furnished by the Company to its stockholders generally.
(n) The Company has complied, and will comply, with all of the
provisions of Florida H.B. 1771, as codified in sec. 517.075 Florida Statutes,
1987, as amended, and all regulations promulgated thereunder relating to issuers
or their affiliates doing business with the government of Cuba or with any
person or affiliate located in Cuba.
(o) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to Sections 13, 14 or 15 of
the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
Section 4. Payment of Expenses. (a) The Company will pay all
-------------------
expenses incident to the performance of the obligations of the Company and the
Selling Stockholders under this Agreement, including (i) the printing and filing
of the Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the preliminary prospectus and the Prospectus
and any amendments or supplements thereto, and the cost of furnishing copies
thereof to the Underwriter, (ii) the copying and distribution of this Agreement
(including the Price Determination Agreement), the certificates for the Shares
and a survey of state securities or blue sky laws (the "Blue Sky Survey"), (iii)
the delivery of the certificates for the Shares to the Underwriter, including
any capital duties, stamp duties and stock or other transfer taxes payable upon
the sale of the Shares to the Underwriter, (iv) the fees and disbursements of
the Company's and the Selling Stockholders' counsel and accountants, (v) the
20
qualification of the Shares under the applicable securities laws in accordance
with Section 3(f) and any filing fee related to the review of the offering by
the National Association of Securities Dealers, Inc. (the "NASD"), and filing
fees and reasonable fees and disbursements of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx as counsel for the Underwriter in connection therewith and in
connection with the Blue Sky Survey, (vi) the fees and expenses of any transfer
agent or registrar for the Shares and (vii) the listing fees and expenses
incurred in connection with listing the Shares on the New York Stock Exchange.
(b) The Company will pay any transfer taxes attributable to the sale
by the Selling Stockholders of the Shares and any fees and disbursements of
their counsel and accountants, if any.
(c) If this Agreement is terminated by you in accordance with the
provisions of Section 5, 9(a)(i) and (ii) or 10, the Company shall reimburse
the Underwriter for all of its out-of-pocket expenses, including the reasonable
fees and disbursements of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx as counsel
for the Underwriter.
Section 5. Conditions of Underwriter's Obligations. In addition to
---------------------------------------
the execution and delivery of the Price Determination Agreement, the obligations
of the Underwriter to purchase and pay for the Shares that they have
respectively agreed to purchase hereunder are subject to the accuracy of the
representations and warranties contained herein (including those contained in
the Price Determination Agreement) or in certificates of any officer of the
Company and the Selling Stockholders delivered pursuant to the provisions
hereof, to the performance by the Company and the Selling Stockholders of their
respective obligations hereunder, and to the following further conditions:
(a) The Original Registration Statement shall have become effective
not later than 5:30 P.M. on the date of this Agreement or, with your consent, at
a later time and date not later, however, than 5:30 P.M. on the first business
day following the date hereof, or at such later time or on such later date as
you may agree to in writing; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective not
later than the time confirmations are sent or given, as specified by Rule
462(b)(2); and at the Closing Time no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or shall be pending or,
to your knowledge or the knowledge of the Company or any of its Subsidiaries,
shall have been threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx as counsel
for the Underwriter. If the Company
21
has elected to rely upon Rule 430A, a Prospectus containing the Rule 430A
Information shall have been filed with the Commission in accordance with Rule
424(b) (or a post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule 430A).
If the Company has elected to rely upon Rule 434, a Term Sheet, which together
with the preliminary prospectuses last furnished to the Underwriter in
connection with the offering of the Shares shall not be "materially different"
as such term is used in Rule 434 from the prospectuses included in the Original
Registration Statement at the time it becomes effective, shall have been filed
with the Commission in accordance with Rule 424(b).
(b) At the Closing Time, you shall have received signed opinions of
(i) Xxxxxxxx & Xxxxx, special counsel for the Company and the Selling
Stockholders, to the effect set forth on Exhibit B hereto [and (ii) counsel for
the next ten largest corporate stockholders], in each case dated as of the
Closing Time, in form and substance reasonably satisfactory to Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx as counsel for the Underwriter. In giving its opinion
Xxxxxxxx & Xxxxx may rely, as to all matters governed by the laws of
jurisdictions other than the federal law of the United States, the law of the
State of New York and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to you. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers or other appropriate
representatives of the Company, the Subsidiaries and the Selling Stockholders
and certificates of public officials.
(c) At the Closing Time, you shall have received the favorable opinion
of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx as counsel for the Underwriter,
dated as of the Closing Time, to the effect that the opinions delivered pursuant
to Section 5(b) appear on their face to be appropriately responsive to the
requirements of this Agreement except, specifying the same, to the extent waived
by you, and with respect to the legal existence of the Company, the Shares, this
Agreement, the Registration Statement, the Prospectus and such other related
matters as you may require. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the federal law of
the United States, the law of the State of New York and the General Corporation
Law of the State of Delaware, upon the opinions of counsel satisfactory to you.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers or other appropriate representatives of the Company, the Subsidiaries
and the Selling Stockholders and certificates of public officials.
(d) At the Closing Time, (i) the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall conform in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations, the Company shall have complied in all material respects with Rule
430A and Rule 434 (if it shall have elected to rely thereon), the Registration
Statement, as it may then be amended or
22
supplemented, shall not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements in the Registration Statement not misleading, and the Prospectus
shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
in the Prospectus, in light of the circumstances under which they were made, not
misleading, (ii) there shall not have been, since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, (iii) no action, suit
or proceeding at law or in equity shall be pending or, to the knowledge of the
Company, threatened against the Company or any Subsidiary that would be required
to be set forth in the Prospectus other than as set forth therein and no
proceedings shall be pending or, to the knowledge of the Company, threatened
against the Company or any Subsidiary before or by any federal, state or other
commission, board or administrative agency that could reasonably be expected to
materially and adversely affect the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise, other than as set forth in the
Prospectus, (iv) the Company shall have complied with all agreements and
satisfied all conditions on their parts to be performed or satisfied at or prior
to the Closing Time and (v) the other representations and warranties of the
Company and Technologies, set forth in Section 1(a) shall be accurate as though
expressly made at and as of the Closing Time. At the Closing Time, you shall
have received a certificate of the President or Vice President and the chief
financial officer or chief accounting officer of the Company, dated as of the
Closing Time, to such effect. As used in Section 5(d)(ii) and (iii), the term
"Prospectus" means the Prospectus in the form first used to confirm sales of the
Shares.
(e) At the Closing Time, (i) the representations and warranties of the
Selling Stockholders set forth in Section 1(b) and in any certificates by or on
behalf of the Selling Stockholders delivered pursuant to the provisions hereof
shall be accurate as though expressly made at and as of the Closing Time, (ii)
the Selling Stockholders shall have performed their obligations under this
Agreement and (iii) you shall have received a certificate of the Selling
Stockholders, dated as of the Closing Time, to the effect set forth in
subsections (i) and (ii) of this Section 5(e).
(f) At the time that this Agreement is executed by the Company, you
shall have received from Coopers & Xxxxxxx L.L.P. a letter, dated such date, in
form and substance satisfactory to you, together with signed or reproduced
copies of such letter for each of the other Underwriters, confirming that they
are independent public accountants with respect to the Company and the
predecessor of the Company within the meaning of the 1933 Act and the applicable
published 1933 Act Regulations, and stating in effect that, except as set forth
in such letter:
23
(i) in their opinion, the audited financial statements and the
related financial statement schedules included in the Registration
Statement and the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1933
Act Regulations;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the latest available unaudited interim consolidated financial
statements of the Company and the predecessor of the Company included in
the Registration Statement and the Prospectus, a reading of the minutes of
all meetings of the stockholders and directors of the Company and the
Subsidiaries and each committee of the board of directors of each of the
Company and the Subsidiaries, inquiries of certain officials of the Company
and the Subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures, including a limited review of such
statements under Statement of Accounting Standards 71, as may be specified
in such letter, nothing came to their attention that caused them to believe
that:
(A) the unaudited financial statements as of and for the
nine-month periods ended September 30, 1996 and 1995 included in the
Registration Statement and the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations applicable to unaudited
interim financial statements included in registration statements or
are not in conformity with GAAP applied on a basis substantially
consistent with that of the audited financial statements included in
the Registration Statement; or
(B) at a specified date not more than five days prior to the
date of this Agreement, there was (i) any change in the capital stock
or consolidated stockholders' equity, (ii) any decrease in
consolidated current assets, working capital and total assets or (iii)
any increase in long-term debt of the Company and its Subsidiaries as
compared with the amounts shown in the latest balance sheet included
in the Registration Statement, except in each case for changes,
decreases or increases that the Registration Statement discloses have
occurred or may occur; or
(C) for the period from October 1, 1996 to a specified date
not more than five days prior to the date of this Agreement, there was
any decrease in consolidated net sales, income from operations, or in
the total or per-share amounts of consolidated income from continuing
operations before income taxes or of consolidated net income or in
other items specified by the Underwriter, in each case as compared
with the comparable period in the preceding year, except in each case
for any decreases that the Registration Statement discloses have
occurred or may occur; or
24
(iii) they are unable to and do not express any opinion on the
pro forma capitalization or Pro Forma Consolidated Financial Statements of
the Company or on the pro forma adjustments applied to the historical
amounts included in such statements (the "Pro Forma Information"); however,
for purposes of such letter they have:
(A) read the Pro Forma Information;
(B) made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters about the
basis for their determination of the pro forma adjustments and whether
the Pro Forma Information above complies in form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X;
(C) compared the historical amounts in the Pro Forma
Information with the Company's audited financial statements or
accounting records; and
(D) proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the Pro Forma
Information; and
on the basis of such procedures, and such other inquiries and procedures as
may be specified in such letter, nothing came to their attention that
caused them to believe that the Pro Forma Information included in the
Registration Statement does not comply as to form in all material respects
with the applicable requirements of Rule 11-02 of Regulation S-X and that
the pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements; and
(iv) in addition to the procedures referred to in clauses (ii)
and (iii) above, they have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages,
numerical data and financial information appearing in the Registration
Statement, which have previously been specified by you and which shall be
specified in such letter, and have compared such items with, and have found
such items to be in agreement with, the accounting and financial records of
the Company and its Subsidiaries.
(g) At the time that this Agreement is executed by the Company, you
shall have received from Xxxxxx Xxxxxxxx LLP a letter, dated such date, in form
and substance satisfactory to you, confirming that they are independent public
accountants with respect to TAI and subsidiaries within the meaning of the 1933
Act and the applicable published 1933 Act Regulations, and stating in effect
that, except as set forth in such letter:
25
(i) in their opinion, the audited financial statements of TAI and
subsidiaries included in the Registration Statement and the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the latest available unaudited interim consolidated financial
statements of TAI and subsidiaries included in the Registration Statement
and the Prospectus, a reading of the minutes of all meetings of the
stockholders and directors of TAI and each committee of the board of
directors of TAI, inquiries of certain officials of TAI who have
responsibility for financial and accounting matters and such other
inquiries and procedures, including a limited review of such statements
under Statement of Accounting Standards 71, as may be specified in such
letter, nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements as of and for the
three-month periods ended March 31, 1996 and 1995 included in the
Registration Statement and the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations applicable to unaudited
interim financial statements included in registration statements or
are not in conformity with GAAP applied on a basis substantially
consistent with that of the audited financial statements included in
the Registration Statement;
(B) at April 30, 1996, there was (i) any change in the
capital stock or consolidated stockholders' equity (deficit), (ii) any
decrease in consolidated current assets or (iii) any increase in long-
term debt of TAI and subsidiaries as compared with the amounts shown
in the latest balance sheet included in the Registration Statement,
except in each case for changes, decreases or increases that the
Registration Statement discloses have occurred or may occur; or
(C) for the period from April 1, 1996 to April 30, 1996,
there was any decrease in consolidated net sales, operating profit, or
loss before taxes or in other items specified by the Underwriter, in
each case as compared with the comparable period in the preceding
year, except in each case for any decreases that the Registration
Statement discloses have occurred or may occur; and
(iii) in addition to the procedures referred to in clauses (ii)
above, they have performed other specified procedures, not constituting an
audit, with respect to certain amounts, percentages, numerical data and
financial information appearing in the Registration Statement, which have
previously been specified by you and which shall be
26
specified in such letter, and have compared such items with, and have found
such items to be in agreement with, the accounting and financial records of
TAI and subsidiaries.
(h) At the Closing Time, you shall have received from each of Coopers
& Xxxxxxx L.L.P. and Xxxxxx Xxxxxxxx LLP a letter, in form and substance
satisfactory to you and dated as of the Closing Time, and to the effect that
they reaffirm the statements made in the letter furnished pursuant to Sections
5(f) and 5(g), except that the specified date referred to shall be a date not
more than five days prior to the Closing Time. In the event the Company relies
on Rule 430A and the final Prospectus furnished to the Underwriter in connection
with the offering of the Shares differs from the Prospectus included in the
Registration Statement at the time of effectiveness, such letter shall update
the procedures referred to in clauses 5(f)(ii), (iii) and (iv) with respect to
Coopers and Xxxxxxx L.L.P. and clauses 5(g)(ii) and (iii) with respect to Xxxxxx
Xxxxxxxx LLP.
(i) At the Closing Time, you shall have received a certificate of the
Chief Financial Officer of the Company as to certain agreed upon accounting
matters.
(j) At the Closing Time, counsel for the Underwriter shall have been
furnished with all such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance
and sale of the Shares as contemplated in this Agreement and the matters
referred to in Section 5(c) and in order to evidence the accuracy and
completeness of any of the representations, warranties or statements of the
Company and the Selling Stockholders, the performance of any of the covenants of
the Company and the Selling Stockholders, or the fulfillment of any of the
conditions herein contained; and all proceedings taken by the Company and the
Selling Stockholders at or prior to the Closing Time in connection with the
authorization, issuance and sale of the Shares as contemplated in this Agreement
shall be reasonably satisfactory in form and substance to you and to Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx as counsel for the Underwriter.
(k) Each Selling Stockholder shall have delivered to you on or prior
to the Closing Time a copy of a properly completed and executed United States
Treasury Department Form W-9 or W-8 (or other applicable form or statement
specified by Treasury Department regulations).
(l) The "lock-up" agreements between you and each Selling Stockholder
and executive officer, delivered to you on or before the date hereof, shall be
in full force and effect at the Closing Time.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by you upon notice to the Company and the Selling
Stockholders at any time at or prior to the Closing Time, and such termination
shall be without liability of any
27
party to any other party except as provided in Section 4 herein. Notwithstanding
any such termination, the provisions of Sections 6 and 7 herein shall remain in
effect.
28
Section 6. Indemnification. (a) The Company and Technologies,
---------------
jointly and severally, agree to indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act to the extent and in the manner
set forth in clauses (i), (ii) and (iii) below. In addition, each Selling
Stockholder, severally and not jointly, agrees to indemnify and hold harmless
the Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
29
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(e) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriter), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); provided, further, that such indemnity agreement with
-------- -------
respect to any preliminary prospectus shall not inure to the benefit of the
Underwriter (or any persons controlling the Underwriter) from whom the person
asserting such loss, claim, damage or liability purchased the Shares which are
the subject thereof if such person did not receive a copy of the Prospectus (or
the Prospectus as amended or supplemented) at or prior to the confirmation of
the sale of such Shares to such person in any case where such delivery is
required by the 1933 Act and the untrue statement or omission or alleged untrue
statement or omission of a material fact contained in such preliminary
prospectus was corrected in the Prospectus (or the Prospectus as amended or
supplemented); provided, however, that with respect to each Selling Stockholder,
-----------------
the indemnification provision in this paragraph (a) shall be only with respect
to the information furnished in writing by or on behalf of such Selling
Stockholder expressly for use in the Registration Statement (or any amendment
thereto), including Rule 430A Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); and
provided, further, that the aggregate liability of any Selling Stockholder
------------------
pursuant to this paragraph (a) shall be limited to the net proceeds received by
such Selling Stockholder from the Shares purchased by the Underwriter from such
Selling Stockholder pursuant to this Agreement and the Price Determination
Agreement; and provided, further, that no Selling Stockholder shall be liable
-------- -------
for any untrue statement, alleged untrue statement, omission or alleged omission
of any other Selling Stockholder.
30
(b) The Company and Technologies, jointly and severally, agree to
indemnify and hold harmless each of the Selling Stockholders and each person, if
any, who controls any Selling Stockholder within the meaning of Section 15 of
the 1933 Act and Section 20 of the 1934 Act to the same extent that the Company
and Technologies have agreed to indemnify and hold harmless the Underwriter
pursuant to the preceding paragraph; provided, however, the Company and
Technologies shall not be liable under this paragraph to the extent any loss,
liability, claim, damage or expense described in the preceding paragraph arises
out of or is based upon an untrue statement, alleged untrue statement, omission
or alleged omission based upon information relating to such Selling Stockholder
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) The Underwriter agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act and each Selling Stockholder and each
person, if any, who controls each Selling Stockholder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(d) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by the Underwriter, and, in the case of parties indemnified pursuant to
Section 6(c) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
31
actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of all
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(e) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(f) The provisions of this Section shall not affect any agreement
among the Company and the Selling Stockholders with respect to indemnification.
Section 7. Contribution. If the indemnification provided for in
------------
Section 6 is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company,
Technologies and the Selling Stockholders on the one hand and the Underwriter on
the other hand from the offering of the Shares pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company, Technologies and the Selling Stockholders on the one hand and of the
Underwriter on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company, Technologies and the
Selling Stockholders on the one hand and the Underwriter on the other hand in
connection with the offering of the Shares pursuant to this Agreement shall be
deemed to be in the
32
same respective proportions as the total net proceeds from the offering of the
Shares pursuant to this Agreement (before deducting expenses) received by the
Company, Technologies and the Selling Stockholders and the total underwriting
discount received by the Underwriter, in each case as set forth on the cover of
the Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet bear to the aggregate initial public offering price of the Shares as set
forth on such cover.
The relative fault of the Company, Technologies and the Selling
Stockholders on the one hand and the Underwriter on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company,
Technologies or the Selling Stockholders or by the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, Technologies, the Selling Stockholders and the
Underwriter agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, (i) no Selling
Stockholder shall be required to contribute any amount in excess of the amount
of the total net proceeds received by such Selling Stockholder from the Shares
purchased from such Selling Stockholder and (ii) the Underwriter shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that the Underwriter has
otherwise been required to pay by reason of any 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 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each
33
person, if any, who controls the Company or any Selling Stockholder within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company or such Selling Stockholder, as
the case may be.
Section 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. The representations, warranties, indemnities and agreements of the
--------
Company, Technologies and the Selling Stockholders contained in this Agreement
and the Price Determination Agreement, or contained in certificates of officers
of the Company or its Subsidiaries or the Selling Stockholders submitted
pursuant hereto, will remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Company, Technologies, the
Selling Stockholders or the Underwriter or controlling person and will survive
delivery of and payment for the Shares.
Section 9. Termination of Agreement. (a) The Underwriter may
------------------------
terminate this Agreement, by notice to the Company and the Selling Stockholders,
at any time at or prior to the Closing Time (i) if there has been, since the
time of execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if a downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
1933 Act, or any such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities, or (iii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Underwriter, impracticable to market the Shares or to enforce
contracts for the sale of the Shares, or (iv) if trading in any securities of
the Company has been suspended or materially limited by the Commission or the
New York Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (v) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in
34
Section 4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive
such termination and remain in full force and effect.
Section 10. Default by the Company or the Selling Stockholders. (a)
--------------------------------------------------
If any Selling Stockholder shall fail at the Closing Time to sell and deliver
the number of Shares that it is obligated to sell, then the Underwriter may, at
its option, by notice to the Company and the Selling Stockholders, either (i)
terminate this Agreement without any liability on the part of any non-defaulting
party except to the extent provided in Section 4 and except that the provisions
of Sections 6 and 7 shall remain in effect or (ii) elect to purchase the Shares
which the non-defaulting party has agreed to sell hereunder. No action taken
pursuant to this Section shall relieve such Selling Stockholder from liability,
if any, in respect of such default.
Section 11. Notices. All notices and other communications under this
-------
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication
(notices transmitted by telecopier to be promptly confirmed in writing).
Notices to you shall be directed to you c/o Merrill Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated at Xxxxxxx Xxxxx World Headquarters, Xxxxx Xxxxx, Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxx Xxxxxxx, with a
copy to Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of Xxxxxxx Xxxx Jacob, Esq.; notices to the Company
and Technologies shall be directed to the Company and Technologies at 00 Xxxxx
Xxxxxx, Xxxxxxx, XX 00000, attention of Xxxxxxx X. Xxxxxxxxxx, with a copy to
Xxxxxxxx & Xxxxx at Citicorp Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, attention of Xxxxx X. Xxxx, Esq.; and notices to the Selling
Stockholders shall be directed to Xxxx Capital, Inc., Two Xxxxxx Xxxxx, Xxxxxx,
XX 00000, attention of Xxxxxx Xxxxxxxxxx, with a copy to Xxxxxxxx & Xxxxx at
Citicorp Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention
of Xxxxx X. Xxxx, Esq.
Section 12. Parties. This Agreement is made solely for the benefit
-------
of the Underwriter, the Company, Technologies, the Selling Stockholders and, to
the extent expressed, any person controlling the Company, Technologies, the
Selling Stockholders or the Underwriter, and the directors of the Company, its
officers who have signed the Registration Statement, and their respective
executors, administrators, successors and assigns and no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from the Underwriter of the Shares.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
----------------------
BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAWS. SPECIFIED TIMES OF THE DAY REFER TO NEW YORK CITY TIME.
35
Section 14. Jurisdiction. Each of the undersigned hereby irrevocably
------------
submits in any suit, action or proceeding arising out of or in relation to this
Agreement, or any of the transactions contemplated hereby, to the jurisdiction
and venue of any federal or state court in the Borough of Manhattan, City of New
York, State of New York.
Section 15. Counterparts. This Agreement may be executed in one or
------------
more counterparts and, when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
36
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Selling Stockholders a
counterpart hereof, whereupon this instrument will become a binding agreement
among the Company, the Selling Stockholders and the Underwriter in accordance
with its terms.
Very truly yours,
WATERS CORPORATION
By --------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, Finance and
Administration and Chief Financial
Officer, Treasurer and Assistant Secretary
WATERS TECHNOLOGIES CORPORATION
By --------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Finance and Administration
and Chief Financial Officer, and Assistant
Secretary
THE SELLING STOCKHOLDERS
NAMED IN SCHEDULE A HERETO
By --------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Attorney-in-Fact
37
Confirmed and accepted as of
the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: --------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
[131709]
38
Exhibit A
WATERS CORPORATION
(a Delaware corporation)
____________ Shares of Common Stock
PRICE DETERMINATION AGREEMENT
-----------------------------
___________ , 1996
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Reference is made to the Purchase Agreement dated _________ , 1996
(the "Purchase Agreement") among Waters Corporation (the "Company"), Waters
Technologies Corporation ("Technologies"), the Selling Stockholders listed in
Schedule A thereto and hereto (the "Selling Stockholders") and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated (the "Underwriter"). The Purchase Agreement
provides for the purchase by the Underwriter from the Selling Stockholders,
subject to the terms and conditions set forth therein, of an aggregate of
__________ shares (the "Shares") of the Company's common stock, par
value $.01 per share. This Agreement is the Price Determination Agreement
referred to in the Purchase Agreement.
Pursuant to Section 2 of the Purchase Agreement, the undersigned agree
with the Underwriter as follows:
1. The initial public offering price per share for the
Shares shall be $_____________.
2. The purchase price per share for the Shares to be paid by the
Underwriter shall be $___________, representing an amount
equal to the initial public offering price set forth above, less
$_______ per share.
The Company and Technologies, jointly and severally, represent and
warrant to the Underwriter that the representations and warranties of the
Company and Technologies set forth in Section 1(a) of the Purchase Agreement are
accurate as though expressly made at and as of the date hereof.
Additionally, if the Company elects to rely upon Rule 462(b), the
Company represents and warrants to the Underwriter that:
(a) the Company has filed a Rule 462(b) Registration Statement
in compliance with and that is effective upon filing pursuant to Rule
462(b) and has received confirmation of its receipt; and
(b) the Company has given irrevocable instruments for
transmission of the applicable filing fee in connection with the filing
of the Rule 462(b) Registration Statement, in compliance with Rule 111
of the 1933 Act Regulations, or the Commission has received payment of
such filing fee.
Each Selling Stockholder, severally and not jointly, represents and
warrants to the Underwriter that the representations and warranties of such
Selling Stockholder set forth in Section 1(b) of the Purchase Agreement are
accurate as though expressly made at and as of the date hereof.
This Agreement shall be governed by the laws of the State of New York,
without regard to principles of conflicts of laws.
A-2
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company, Technologies and the Selling
Stockholders a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Purchase Agreement shall be a binding
agreement among the Underwriter, the Company, Technologies and the Selling
Stockholders in accordance with its terms and the terms of the Purchase
Agreement.
Very truly yours,
WATERS CORPORATION
By --------------------------------------
Name:
Title:
WATERS TECHNOLOGIES CORPORATION
By --------------------------------------
Name:
Title:
THE SELLING STOCKHOLDERS
NAMED IN SCHEDULE A HERETO
By --------------------------------------
Name:
Title: Attorney-in-Fact
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Confirmed and accepted as of
the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By --------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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SCHEDULE A
Number of Shares
Selling Stockholder to be Sold
Total.........................
SCHEDULE B
Subsidiaries Place of Incorporation
------------ ----------------------
Waters Technologies Corporation....Delaware
Waters Investments Limited.........Delaware
TA Instruments, Inc. ..............Delaware
Extrel F.T.M.S. ...................Delaware
Nihon Waters Limited...............Delaware
Nihon Xxxxxx X.X. .................Japan
Waters Asia Limited................Delaware
Waters China Limited...............Hong Kong
Waters Operating Corp. ............Delaware
Waters Australia Pty. Ltd. ........Australia
Waters NV..........................Belgium
Waters Ltda. ......................Brazil
Waters Limited/Waters Limitee......Canada
Waters A/S.........................Denmark
Waters Oy..........................Finland
Waters France Holding Corp. .......Delaware
Waters Holding SA..................France
Xxxxxx XX..........................France
Waters GmbH........................Germany
Waters S.r.l. .....................Italy
Xxxxxx XX de CV....................Mexico
Waters Chromatography BV...........Netherlands
Waters Chromatography Europe BV....Netherlands
Waters Chromatografia SA...........Spain
Waters Sverige AB..................Sweden
Xxxxxx XX..........................Switzerland
Waters GesMBH......................Austria
Waters Kft.........................Hungary
Waters Sp.Zo.o.....................Poland
Waters Ltd. .......................U.K.
Phase Separations Ltd. ............U.K.
Phase Separations EURL.............France
Phase Separations B.V. ............Netherlands
Phase Separations Inc. ............Connecticut
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SCHEDULE C
Material Subsidiaries Place of Incorporation
--------------------- ----------------------
Waters Technologies Corporation....Delaware
Waters Investments Limited.........Delaware
TA Instruments, Inc. ..............Delaware
Waters Holding SA..................France
Xxxxxx XX. ........................France
Waters GmbH........................Germany
Waters Ltd. .......................U.K.
================================================================================
WATERS CORPORATION
(a Delaware corporation)
____________ Shares of Common Stock
PURCHASE AGREEMENT
------------------
Dated: ___________, 1996
================================================================================
Exhibit B
Form of Opinion of Xxxxxxxx & Xxxxx Pursuant to
Section 5(b) of the U.S. Purchase Agreement
___________, 1996
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Re: Waters Corporation
------------------
Ladies and Gentlemen:
We have acted as counsel for Waters Corporation, a Delaware
corporation (the "Company"), Waters Technologies Corporation, a Delaware
corporation ("Technologies") and the Selling Stockholders, including Xxxx
Capital Fund IV, L.P., Xxxx Capital Fund IV-B, L.P., BCIP Associates and BCIP
Trust Associates, L.P. (collectively, the "Xxxx Capital Entities"), in
connection with the sale, pursuant to the Purchase Agreement (the "Purchase
Agreement") dated ___________, 1996, among the Company, Technologies, the
selling stockholders named in Schedule A thereto (the "Selling Stockholders"),
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Underwriter"), of
__________ shares by the Selling Stockholders ("the "Shares"), of the Company's
common stock, par value $0.01 per share ("Common Stock"), and the related Price
Determination Agreement (the "Price Determination Agreement") dated __________,
1996 among the Company, Technologies, the Selling Stockholders and the
Underwriter. Capitalized terms used but not otherwise defined herein shall have
the meanings given to such terms in the Purchase Agreement.
We have examined, among other things, the following:
(1) copies of the Registration Statement on Form S-1 (No. 333-____)
filed by the Company with the Commission on _________, 1996 for the purpose of
registering the offering of the Shares under the Securities Act, as amended on
_________, 1996 and __________, 1996, in each case including all exhibits
thereto (as amended to the date hereof, the "Registration Statement");
(2) a copy of the Company's preliminary prospectus dated __________,
1996 relating to the Shares and a copy of the Company's final prospectus dated
__________, 1996, relating to the Shares (the final prospectus, the
"Prospectus");
(3) a copy of the Purchase Agreement and the Price Determination
Agreement;
(4) a copy of the Custody Agreement and Power of Attorney, dated as of
October ___, 1996, by and among the Company, the Selling Stockholders, the
Attorneys-in-Fact named therein and The First National Bank of Boston (all such
agreements collectively, the "Custody Agreement and Power of Attorney");
(5) certain letter agreements between certain stockholders of the
Company in favor of the Underwriter (the "Lock-up Agreements");
(6) the Registration Rights Agreement made as of August 18, 1994 by
and among the Company and certain stockholders of the Company (the "Registration
Rights Agreement");
(7) copies of the certificates of incorporation and byaws of the
Company, and Technologies, as amended to date; and
(8) copies of a unanimous written consent signed by each member of the
Board of Directors of the Company on October ___, 1996 and a unanimous written
consent signed by each member of the Board of Directors of Technologies on
_______________, 1996;.
The Purchase Agreement, the Price Determination Agreement, and the
Custody Agreement and Power of Attorney are collectively referred to as the
"Transaction Agreements." The Purchase Agreements, the Price Determination
Agreements and the Custody Agreement and Power of Attorney are collectively
referred to as the "Selling Stockholder Agreements."
In addition, we have examined and relied, to the extent we deemed
proper, on the originals or copies certified or otherwise identified to our
satisfaction of all such corporate or partnership records of the Company and the
Xxxx Capital Entities and such other instruments and certificates of public
officials, officers and representatives of the Company and the Xxxx Capital
Entities and other persons, and we have made such investigations of law as we
have deemed appropriate. We have assumed the legal capacity of all natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to the originals of all documents submitted to us as copies, and the
authenticity of the originals of all documents submitted to us as copies. In
our examination, we have assumed the genuineness of the signatures of persons
B-2
purportedly signing all documents and instruments, the authority and capacity of
such persons signing on behalf of the parties thereto other than the Company and
the Xxxx Capital Entities and the due authorization, execution and delivery of
all documents by the parties thereto other than the Company and the Xxxx Capital
Entities.
As to matters of fact, we have relied (without independent
investigation) upon oral or written statements or representations of officers of
the Company, the Selling Stockholders and the Xxxx Capital Entities. Nothing
has been brought to our attention which causes us to believe, however, that such
statements or representations are misleading.
To the extent it may be relevant to the opinions expressed herein, (i)
we have assumed that the Power of Attorney and Custody Agreement of each Selling
Stockholder other than the Xxxx Capital Entities has been duly authorized,
executed and delivered by each party thereto and constitutes a valid and binding
agreement of each party thereto other than such Selling Stockholder and the
Company and (ii) we are relying upon oral advice of the staff of the Securities
and Exchange Commission (the "Commission") that the Commission has issued an
order declaring the Registration Statement effective.
Whenever any statement contained herein with respect to the existence
or absence of facts is indicated to be based on our knowledge or awareness, we
are referring to the actual knowledge of those Xxxxxxxx & Xxxxx attorneys who
have represented the Company and the Xxxx Capital Entities. Except as expressly
set forth herein, where our opinion is based upon our "knowledge," we have not
undertaken any independent investigation (other than inquiries of senior
officers of the Company and the Xxxx Capital Entities) to determine the
existence or absence of such facts and no inference as to our knowledge
concerning such facts should be drawn from the fact of our representation of
such entities.
Subject to the foregoing and to the further assumptions, qualifications
and limitations set forth below:
(i) The Company is a corporation validly existing and in good standing
under the General Corporation Law of the State of Delaware with requisite
corporate power and authority under such laws to own, lease and operate its
properties and to conduct its business as described in the Prospectus and
to enter into and perform its obligations under the Purchase Agreement.
(ii) Each of the Subsidiaries of the Company organized under the laws
of the United States and listed on Schedule A hereto (the "Domestic
Subsidiaries") is a corporation validly existing and in good standing under
the laws of the jurisdiction of its incorporation with requisite corporate
power and authority under such laws to own its properties and conduct its
business as described in the Prospectus, and is duly qualified to
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transact business as a foreign corporation and is in good standing under
the laws of each jurisdiction set forth opposite such Domestic Subsidiary's
name on Schedule A hereto.
(iii) Each of the Company and Technologies has all necessary
corporate power and authority to execute, deliver and perform its
obligations under each of the Transaction Agreements to which it is a
party; each of the Transaction Agreements has been duly authorized,
executed and delivered by each of the Company and Technologies which is a
party thereto; and each of the Transaction Agreements constitutes the valid
and binding obligation of each of the Company and Technologies which is a
party thereto, enforceable against the Company or Technologies, as the case
may be, in accordance with its terms.
(iv) All of the issued and outstanding shares of capital stock of the
Company (including the shares of Common Stock to be sold by the Selling
Stockholders pursuant to the Purchase Agreement) have been duly authorized
and validly issued and are fully paid and non-assessable; and, to our
knowledge, none of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or other similar rights of any
stockholder of the Company. The Company has the authorized capitalization
set forth in the Prospectus under the caption "Capitalization."
(v) Except as disclosed in the Prospectus, (a) all of the outstanding
shares of capital stock of each Domestic Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable and,
based solely upon a review of the stock transfer records of such Domestic
Subsidiary, are owned of record by the Company, directly or through one or
more Subsidiaries, free and clear of any pledge, lien, security interest,
charge, claim, mortgage or encumbrance of any kind, and (b) to our
knowledge, none of the outstanding shares of capital stock of the Domestic
Subsidiaries was issued in violation of the preemptive or other similar
rights of any stockholder of such Domestic Subsidiaries.
(vi) Except as disclosed in the Prospectus, to our knowledge, there
are no outstanding options, warrants or other rights calling for issuance
of, and no commitments, obligations, written plans or arrangements to
issue, any shares of capital stock of the Company or any Subsidiary or any
security convertible into or exchangeable for capital stock of the Company
or any Subsidiary.
(vii) The statements made in the Prospectus under the captions
"Description of Capital Stock" and "Description of Certain Indebtedness"
have been reviewed by us and are accurate and fairly summarize the
agreements or other documents described therein in all material respects.
B-4
(viii) No authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court (other than as required under the securities or
blue sky laws of the various states, as to which we express no opinion) is
necessary under any applicable law, statute, rule or regulation that in our
experience is normally applicable to transactions of the type provided for
in the Transaction Agreements in connection with the execution, delivery
and performance of the Transaction Agreements by the Company or
Technologies or for the sale and delivery of the Shares, except such as
have been obtained.
(ix) The execution, delivery and performance of the Transaction
Agreements by the Company or Technologies, as the case may be, and the sale
and delivery of the Shares will not result in any violation of the charter
or bylaws of the Company or Technologies and do not and will not conflict
with, or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition
of any lien or encumbrance upon any property or assets of the Company or
Technologies under (a) any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument
filed as an exhibit to the Registration Statement, (b) any applicable law,
statute, rule, or regulation that in our experience is normally applicable
to transactions of the type provided for in the Transaction Agreements, or
(c) any judgment, order, writ, injunction or decree of any government,
governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or Technologies or any of their respective
properties, assets or operations described in the Prospectus or as set
forth on a schedule attached hereto (which the Company has advised us are
the only judgments, orders, writs, injunctions or decrees of any
government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or Technologies or any of their
respective properties or operations, by which the Company or Technologies
is bound). We express no opinion in clause (b) of this paragraph (ix) with
respect to the information contained in, or the accuracy, completeness or
correctness of, the Prospectus or the Registration Statement, which matters
are dealt with in paragraphs (vii), (xiv) and our separate letter to the
Underwriter dated the date hereof.
(x) We have been advised by the Commission that the Registration
Statement was declared effective under the 1933 Act at __________ Eastern
Time, on ____________, 1996; the required filing of the Prospectus pursuant
to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); and, to our knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or have
been threatened by the Commission under the 1933 Act.
B-5
(xi) To our knowledge, other than as disclosed in the Prospectus,
there are no legal or governmental proceedings pending or threatened to
which the Company or Technologies is or may be a party or to which any
property of the Company or Technologies is or may be the subject which, if
determined adversely to the Company or Technologies, could, individually or
in the aggregate, reasonably be expected to (x) result in a material
adverse effect on the financial condition of the Company and its
Subsidiaries, considered as one enterprise or (y) materially and adversely
affect the execution, delivery and performance by the Company or
Technologies of the Transaction Agreements. To our knowledge, there are no
statutes or regulations, and no legal or governmental actions, suits or
proceedings pending or threatened against the Company or Technologies that
are required to be described in the Prospectus that are not so described.
(xii) To our knowledge, except as set forth in the Prospectus, the
Company and the Subsidiaries are in compliance with, and each such entity
has not received any notice of any outstanding violation of, all laws,
ordinances, rules, regulations, judgments, decrees, orders and statutes
applicable to the Company or any Subsidiary and any of their respective
operations, except, in either case, where any failure by the Company or any
Subsidiary to comply with any such law, regulation, ordinance or rule could
not reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the financial condition of the Company and its
Subsidiaries, considered as one enterprise.
(xiii) To our knowledge, except as set forth in the Prospectus and
except as provided in the Registration Rights Agreement, there are no
holders of securities (debt or equity) of the Company or any Subsidiary or
holders of rights (including, without limitation, preemptive rights),
warrants or options to obtain securities of the Company or any Subsidiary
who have the right to request the Company or any Subsidiary to register
securities held by them under the 1933 Act as a result of the filing of the
Registration Statement by the Company or the offering contemplated therein,
other than holders who have waived such rights or will not have such rights
for the 180-day period after the date of the Prospectus.
(xiv) The statements made in the Prospectus under the caption
"Certain United States Federal Tax Consequences to Non-United States
Holders" insofar as they constitute federal statutes, rules and
regulations, have been reviewed by us and fairly present the information
disclosed therein in all material respects.
(xv) The Company is not an investment company within the meaning of
the Investment Company Act of 1940, as amended.
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(xvi) Each of the Xxxx Capital Entities has the partnership power and
authority to enter into the Selling Stockholder Agreements and to sell,
transfer and deliver the Shares to be sold by it under the Purchase
Agreement. The Selling Stockholder Agreements have been duly authorized,
executed and delivered by or on behalf of each of the Xxxx Capital Entities
and constitute the valid and binding obligations of each of the Xxxx
Capital Entities, enforceable against the Xxxx Capital Entities in
accordance with their terms.
[(xvii) The Purchase Agreement and the Price Determination Agreement
have been duly authorized, executed and delivered by or on behalf of each
Selling Stockholder other than the Xxxx Capital Entities (collectively, the
"Minority Stockholders").]
[(xviii) The Custody Agreement and Power of Attorney constitutes the
valid and binding obligation of each Minority Stockholder enforceable
against each Minority Stockholder in accordance with its terms.]
(xix) The execution, delivery and performance of the Selling
Stockholder Agreements by or on behalf of the Xxxx Capital Entities do not
and will not result in a violation of the partnership agreement or
certificate of limited partnership, as applicable, of the Xxxx Capital
Entities and, to our knowledge, do not and will not conflict with, or
result in a breach of any of the terms and provisions of, or constitute a
default under (A) any statute, rule or regulation relating to any of the
Xxxx Capital Entities or their legal or regulatory status which in our
experience is normally applicable to transactions of the type provided for
in the Selling Stockholder Agreements, (B) any material judgment, order,
writ, injunction or decree of any court or governmental agency or body,
domestic or foreign, having jurisdiction over any of the Xxxx Capital
Entities or (C) any material contract, agreement or other instrument listed
on Schedule B hereto to which any of the Xxxx Capital Entities is a party
or by which any of them are bound.
(xx) The execution, delivery and performance of the Selling
Stockholder Agreements by or on behalf of each Selling Stockholder will not
contravene any provision of the General Corporation Law of the State of
Delaware, the laws of the State of New York or the federal laws of the
United States of America applicable to such Selling Stockholder, provided
that the foregoing opinion is limited to such laws which, in our
experience, are normally applicable to public offerings of securities of
the type contemplated by the Purchase Agreement excluding laws that are
applicable to any Selling Stockholder solely because of its specific status
(including regulatory status), other than its status as a Selling
Stockholder.
(xxi) No consent, approval, authorization or order of or
qualification by the State of Delaware (as it relates to the General
Corporation Law of the State of Delaware),
B-7
the State of New York or any federal governmental body or agency is
required for the performance by any Selling Stockholder of its obligations
under the Selling Stockholder Agreements, except such as have been obtained
under the Securities Act or such as may be required by the securities or
Blue Sky laws in connection with the purchase and distribution of the
Shares by the Underwriter, provided that the foregoing opinion is limited
to such consents, approvals, authorizations, orders or qualification which,
in our experience, are normally applicable to public offerings of
securities of the type contemplated by the Purchase Agreements excluding
consents, approvals, authorizations, orders or qualifications that are
applicable to any Selling Stockholder solely because of its specific status
(including regulatory status), other than its status as a Selling
Stockholder.
(xxii) Assuming that the Underwriter purchases the Shares to be
delivered by or on behalf of the Selling Stockholders at the Closing Time
in good faith and without notice of any security interests, claims, liens,
equities, encumbrances and other adverse claims as such term is used in
Section 8-302 of the Uniform Commercial Code as in effect in the State of
New York, the delivery of certificates representing such Shares, duly
endorsed to the Underwriter or in blank, will pass to the Underwriter valid
title to such Shares, free and clear of all security interests, claims,
liens, equities, encumbrances and other adverse claims.
Our opinions are subject to the following further qualifications:
(a) Our opinions regarding enforceability are subject to (x) the
effect of bankruptcy, insolvency, reorganization, arrangement, moratorium,
fraudulent transfer or other similar laws, (y) the effect of general
principles of equity (regardless of whether enforcement is considered in
proceedings at law or in equity), and (z) limitations imposed by federal or
state securities laws on principles of public policy to enforcement of
rights to indemnification and contribution.
(b) Our opinions expressed herein are limited to matters governed by
the federal laws of the United States of America, the laws of the State of
New York and the General Corporation Law of the State of Delaware.
This letter is furnished to you pursuant to Sections 5(b) of the
Purchase Agreement, is solely for your benefit, and is not to be used,
circulated, quoted or otherwise relied upon by any other person or by you for
any other purpose, without our prior written consent.
Very truly yours,
B-8
Schedule A - Domestic Subsidiaries
----------------------------------
Jurisdiction(s) in which
Jurisdiction of Qualified as a Foreign
Subsidiary Organization Corporation
--------------------------- --------------- --------------------------
Waters Technologies Delaware California, Colorado,Connecticut,
Corporation Florida, Georgia, Iowa, Indiana,
Kentucky, Maryland, Massachusetts,
Michigan, Minnesota, Missouri,
Montana, New Jersey, New York,
North Carolina, Ohio, Oregon,
Pennsylvania, South Carolina,
Texas, Virginia, Washington, West
Virginia, Wisconsin
Waters Investments Limited Delaware None
TA Instruments, Inc. Delaware [ ]
Schedule B - Material Contracts of the Xxxx Capital Entities
------------------------------------------------------------
Agreement of Limited Partnership of Xxxx Capital Fund IV, L.P. ("Fund IV"),
dated April 12, 1993
Certificate of Limited Partnership for Fund IV, dated August 28, 1992
Investment and Advisory Agreement, dated April 16, 1993 between Fund IV and Xxxx
Capital, Inc.
Agreement of Limited Partnership of Xxxx Capital Fund IV-B, L.P. ("Fund IV-B"),
dated April 12, 1993
Certificate of Limited Partnership for Fund IV-B, dated April 6, 1993
Investment and Advisory Agreement, dated April 16, 1993 between Fund IV-B and
Xxxx Capital, Inc.
Agreement of Limited Partnership of Xxxx Capital Partners IV, L.P. ("BCP-IV"),
dated April 5, 1993
Certificate of Limited Partnership for BCP-IV, dated August 28, 1992
Certificate of Incorporation of Xxxx Capital Investors, Inc., dated April 5,
1993
Amended and Restated Partnership Agreement of BCIP Associates dated as of
January 24, 1991
Amended and Restated Limited Partnership Agreement of BCIP Trust Associates
dated as of January 24, 1991
__________, 1996
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Re: Waters Corporation
------------------
Ladies and Gentlemen:
We have acted as counsel for Waters Corporation, a Delaware corporation
(the "Company") and Waters Technologies Corporation, a Delaware corporation
("Technologies") in connection with (i) the Purchase Agreement (the "Purchase
Agreement") dated __________, 1996, among the Company, Technologies, the selling
stockholders named in Schedule A thereto (the "Selling Stockholders"), and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Underwriter") and (ii)
the related Price Determination Agreement dated __________, 1996 among the
Company, Technologies, the Selling Stockholders and the Underwriter.
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Purchase Agreement.
Because the primary purpose of our professional engagement was not to
establish factual matters and because of the wholly or partially non-legal
character of many determinations involved in the preparation of (i) the
Registration Statement on Form S-1 (Registration No. 333-____) (as amended, the
"Registration Statement"), in each case as filed by the Company with the
Securities and Exchange Commission (the "Commission"), and (ii) the final
prospectus, dated ___________, 1996 (the "Prospectus") filed by the Company with
the Commission on ____________, 1996, we are not passing upon and do not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (except to the extent
expressly set forth in paragraphs (vii) and (xiv) of our opinion letter to you
of even date herewith) and make no representation that we have independently
verified the accuracy, completeness or fairness of such statements (except as
aforesaid).
However, in our capacity as special counsel to the Company and the Selling
Stockholders, we have participated in the preparation of the Registration
Statement and the Prospectus and we met with and participated in telephone
conferences with representatives of the Company, representatives of Xxxx
Capital, Inc., representatives of Coopers & Xxxxxxx L.L.P., the Company's
independent auditors, your representatives and representatives of Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx, your legal counsel, during which the contents of the
Registration
Statement and the Prospectus and related matters were discussed. In addition, we
reviewed certain documents furnished to us by the Company and the Selling
Stockholders.
Based on our participation in the above-mentioned conferences, our review
of the documents described above, our understanding of applicable law and the
experience we have gained in our practice thereunder, we advise you that (i) the
Registration Statement, at the time it became effective, and the Prospectus (in
each case other than the financial statements and related schedules and
financial data therein, as to which we express no opinion) comply as to form in
all material respects with the requirements of the Securities Act of 1933, as
amended, and the rules and regulations thereunder except that we express no
opinion in this clause (i) with respect to the matters covered by the following
clause (ii); (ii) although we do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except for those referred to in paragraphs (vii)
and (xiv) of our opinion letter to you of even date herewith), on the basis of
our understanding of applicable law and experience we have gained in our
practice thereunder, nothing has come to our attention that would cause us to
believe that, as of its effective date, the Registration Statement (including
the Rule 430A Information but excluding the financial statements and related
schedules and financial data therein, as to which we express no opinion)
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that, as of their dates, the Prospectus or any amendment or
supplement thereto (other than the financial statements and financial data
therein, as to which we express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading or that, as of the Closing Time, either the Registration
Statement or the Prospectus (in each case other than the financial statements
and related schedules and financial data therein, as to which we express no
opinion) contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and (iii) we do not
know of any amendment to the Registration Statement required to be filed or of
any contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described as
required.
This letter is furnished to you pursuant to Section 5 (b) of the Purchase
Agreement, is solely for your benefit, and is not to be used, circulated, quoted
or otherwise relied upon by any other person or by you for any other purpose,
without our prior written consent.
Very truly yours,
C-2