EXHIBIT 10
PURCHASE AND
SALE AGREEMENT
DATED MARCH 31, 1994
BY AND AMONG
MILLIPORE CORPORATION,
MILLIPORE INVESTMENT HOLDINGS, LTD.
MILLIPORE, S.A.
AND
WATERS HOLDING INC.
PURCHASE AND SALE AGREEMENT
This is an agreement dated the 31st day of March, 1994,
among Waters Holding Inc., a Delaware corporation (the
"Purchaser"), Millipore Corporation, a Massachusetts corporation
("Millipore"), Millipore Investment Holdings, Ltd., a Delaware
corporation ("MIHL"), and Millipore, S.A., a French corporation
("Millipore France"), each of which are wholly-owned subsidiaries
of Millipore.
WHEREAS Millipore conducts, as one of its businesses on a
worldwide basis, a Business (as defined below) under the name
"Waters Chromatography Division" (herein referred to as the
"Waters Division"); and
WHEREAS the Waters Division's conduct of the Business
outside of the United States has heretofore been integrated with
Millipore's other businesses, so that (i) in certain foreign
countries the sales, service and customer support operations of
the Waters Division (along with Millipore's other businesses) are
conducted through wholly-owned foreign subsidiary corporations
organized under the laws of such countries and identified on
Annex A hereto and (ii) in certain other foreign countries the
sales, service and customer support applications of the Waters
Division (separate from Millipore's other businesses) are
conducted through foreign branches of U.S. subsidiaries and
identified on Annex B hereto and (iii) in certain other foreign
countries the sales, service and customer support operations of
the Waters Division (along with Millipore's other businesses) are
conducted through independent third party distributors; and
WHEREAS, MIHL prior to the date hereof transferred to Waters
Investments Limited ("WIL"), a Delaware corporation and wholly-
owned subsidiary of MIHL, the patents, trade secrets and other
intellectual property rights previously owned by Millipore and
used by the Waters Division in the design, development,
manufacturing, assembly, sale or distribution of products sold by
the Waters Division; and
WHEREAS, Millipore has caused (i) Millipore France to form a
subsidiary, Waters, S.A., a corporation organized under the laws
of France ("Waters France"), to which Millipore France will
contribute all tangible and intangible assets of the Waters
Division located within France and its possessions, other than
assets held by WIL, subject to all liabilities and obligations
(which will be assumed by Waters France) incurred in the conduct
of the Business in France; and (ii) WIL to form two subsidiaries,
Nihon Waters Limited ("Nihon Waters") and Waters Asia Limited
("Waters Asia"), each a Delaware corporation, to which Millipore
has caused or intends to cause (a) Nihon Millipore Ltd., a
Japanese corporation ("Nihon Millipore"), to contribute all
tangible and intangible assets of the Waters Division located in
Japan and its possessions subject to all liabilities and
obligations (which shall be assumed by Nihon Waters) incurred in
connection with the conduct of the Business in Japan and (b)
Millipore Asia Ltd., a Delaware corporation ("Millipore Asia"),
to contribute all of the tangible and intangible assets of the
Waters Division located in those jurisdictions in which Millipore
Asia conducts the Waters Division through branches subject to all
liabilities and obligations (which shall be assumed by Waters
Asia) incurred in the conduct of the Business in such
jurisdictions. The dates on which the contributions by Millipore
France to Waters France, Nihon Millipore to Nihon Waters and
Millipore Asia to Waters Asia, respectively shall have taken
place are herein referred to as the "Contribution Dates."
WHEREAS, the tangible assets, real estate and certain
intangible assets used by the Waters Division in the conduct of
the Business are owned directly or indirectly by Millipore and
its Foreign Affiliates (as defined herein) and WIL; and
WHEREAS, Millipore wishes to sell to Purchaser and to cause
each Foreign Affiliate to sell to Purchaser and Purchaser wishes
to purchase from Millipore and each such Foreign Affiliate the
assets of the Waters Division used in the conduct of the Business
by Millipore and each such Foreign Affiliate in consideration of
the payment of the Purchase Price and the assumption by the
Purchaser of the Assumed Liabilities (as defined herein)
associated with such assets, subject to the terms and conditions
hereinafter set forth; and
WHEREAS Millipore France and MIHL wish to sell to the
Purchaser and the Purchaser wishes to purchase from Millipore
France and MIHL all of the outstanding capital stock of Waters
France and all of the outstanding capital stock of WIL,
respectively, subject to the terms and conditions hereinafter set
forth;
NOW THEREFORE, in consideration of the premises and the
mutual covenants hereinafter contained, the parties hereto agree
as follows:
ARTICLE I.
1. Definitions. For the purposes of this Agreement, the
following terms shall have the meanings assigned to them below
whenever they are used in this Agreement (other terms defined
elsewhere in this Purchase and Sale Agreement shall have the
meanings ascribed to them at the location of their definition).
Except where the context otherwise requires, words imparting the
singular number shall include the plural number and vice versa,
words denoting any gender shall include all genders and words
denoting persons shall include bodies corporate and vice versa:
1.1. "Agreement" shall mean this Purchase and Sale
Agreement, as originally executed and as amended, modified,
supplemented or restated from time to time, as the context
requires.
1.2. "Balance Sheet" shall mean the balance sheet of the
Waters Division as of December 31, 1993 included in the Waters
Division Financial Statements.
1.3. "Business" shall mean all of the businesses of the
Waters Division, including, without limitation, the liquid
chromatography business, operations and activities conducted by
Millipore and its subsidiaries and affiliates on a worldwide
basis. The liquid chromatography business, operations and
activities shall include, without limitation, the design,
manufacture, sale or distribution both directly and through
independent distributors of: (i) high performance liquid
chromatography instruments and components, (ii) mass
spectrometers, including "Time of Flight" mass spectrometers (but
excluding the business relating to those Time of Flight mass
spectrometers currently the subject of the TOF License (other
than intellectual property rights therein)), (iii)
chromatographic components and consumables including, without
limitation, solvent delivery systems, automatic samplers and
injectors, chromatographic columns and consumables, detectors and
data processing equipment and (iv) all products and services
related to any of the foregoing.
1.4. "Closing Date" shall mean the date upon which the
closing of the transactions contemplated by this Agreement takes
place as determined in accordance with Section 3.
1.5. "ConSep License" shall mean a license agreement
substantially in the form of Exhibit A hereto.
1.6. "Documents" shall mean this Agreement and all
Schedules and Exhibits attached hereto and other agreements
contemplated hereby.
1.7. "Foreign Affiliates" shall mean those foreign direct
and indirect subsidiary corporations of Millipore which, as of
the date hereof, own accounts receivable, inventory, assembly
equipment, Waters Intellectual Property and/or other assets used
in or relating to the Business or conducted any portion of the
Business but excluding those subsidiaries identified on Annexes B
and C hereof.
1.8. "GAAP" shall mean United States generally accepted
accounting principles.
1.9. "Millipore GAAP" shall mean GAAP, applied on a basis
consistent with the preparation of the Balance Sheet.
1.10. "Millipore Contributed Assets" shall mean those
rights and assets (tangible and intangible) which are not
included in the Balance Sheet, but which are necessary for stand
alone functionality for the conduct of the Business as conducted
on December 31, 1993; provided, that with respect to the asset
categories described on Exhibit B hereto, Millipore Contributed
Assets shall mean those assets described opposite such categories
on Exhibit B.
1.11. "Purchased Assets" shall mean, collectively, the
Foreign Assets and the Domestic Assets (each as defined in
Section 2.2 hereof).
1.12. "Sellers" shall mean, collectively, Millipore, MIHL,
Millipore France and each of their respective subsidiaries and
affiliates.
1.13. "Tax" means any federal, state, local, or foreign
income, gross receipts, franchise, excise, customs duties,
payroll, employment, withholding, social security, unemployment,
disability, real property, personal property, capital, net worth,
transactions, sales, use, transfer, value added, alternative or
add-on minimum, estimated, or other tax, assessment or
governmental charge imposed by law of any kind whatsoever,
including any interest, penalty, or addition thereto, whether
disputed or not.
1.14. "TOF License" shall mean a license agreement
substantially in the form of Exhibit C hereto.
1.15. "Transition Services Agreement" shall mean a
Transition Support and Service Agreement between Millipore and
Purchaser substantially in the form of Exhibit D hereto.
1.16. "Waters Division Financial Statements" shall mean the
audited balance sheets of the Waters Division as of December 31,
1993 and 1992, the related statements of income before corporate
allocations and income taxes and cash flows for each of the three
years in the period ended December 31, 1993, attached as
Schedule 4.6 hereto.
1.17. "Waters Intellectual Property" shall mean
collectively all intellectual property assets and rights owned by
or under license from a third party to WIL, Millipore or any
other Seller or any of their respective affiliates;
(A) used exclusively in or relating exclusively to the
Business from a third party, including without limitation the
following:
(i) all right, title and interest in and to all
patents, copyright registrations and applications therefor, mask
work registrations and applications therefor, patent
applications, trademark licenses, copyright licenses and mask
work licenses, patent licenses and copyrights used, acquired,
developed or currently under development for use exclusively in
the Business including but not limited to those set forth on
Schedule 4.13 hereto;
(ii) all right, title and interest in and to all
technologies, designs, methods, formulations, software, trade
secrets, know-how and processes and licenses (with respect to the
foregoing), used exclusively in, acquired or developed or
currently under development for use exclusively in the Business;
(iii) all right, title and interest in and to the
trademark "Waters" in the U.S. and all foreign jurisdictions, and
all good will associated therewith and all U.S. and foreign
trademark registrations and applications obtained or filed with
respect to such trademark, including but not limited to those set
forth on Schedule 4.13 hereto;
(iv) the other trade names, trademarks and trademark
registrations and applications used or useful exclusively by the
Business and all good will associated therewith, including, but
not limited to, those set forth on Schedule 4.13; and
(B) used in or relating to the subject matter of the TOF
License and the ConSep License ("TOF and ConSep Technology"),
including, without limitation, those patents, patent applications
and licenses, copyright registrations and applications listed on
Schedule 4.13.
2.Acquisition of Purchased Assets, WIL and Waters France by
Purchaser.
2.1. Sale of Waters France and WIL Stock. Millipore, MIHL
and Millipore France agree to sell and transfer to Purchaser (or,
at the option of Purchaser, to one or more direct or indirect
wholly-owned subsidiaries of Purchaser designated by Purchaser
(its "designee(s)")), and Purchaser agrees to purchase (or cause
its designee(s) to purchase) from Millipore, MIHL and Millipore
France at the Closing (as defined in Section 3), all of the
outstanding capital stock of Waters France (the "Waters France
Stock") and all of the outstanding capital stock of WIL (the "WIL
Stock"), respectively.
2.2. Sale of Purchased Assets.
(1) Sale of Foreign Assets. Subject to the terms and
conditions set forth herein, on the Closing Date (as defined in
Section 3.1), Purchaser (or its designee(s) shall purchase from
each Foreign Affiliate and Millipore shall cause each Foreign
Affiliate to convey, set over, assign, sell and deliver to
Purchaser (or its designee(s)), free and clear of all liens,
claims or other encumbrances (except as may be otherwise
expressly permitted by this Agreement) all right, title and
interest in each of the assets enumerated below used exclusively
in or relating exclusively to the Business conducted by such
Foreign Affiliate (collectively, the "Foreign Assets"), including
without limitation,
(a) all unfilled purchase orders, sales orders and
service contracts relating to the Business in the territory
in which such Foreign Affiliate has conducted the Business;
(b) all customer lists, mailing lists, and other
records and data relating to the Business;
(c) copies of all files, records, books and other data
relating to the Business;
(d) to the extent transferable, all licenses, permits
or governmental approvals applied for, issued or given to
such Foreign Affiliate and relating to the Business;
(e) all accounts receivable of such Foreign Affiliate
relating to the Business;
(f) all machinery, equipment, inventories, raw
materials, supplies, spare parts, work-in-process, finished
goods and other tangible assets used in or relating to the
Business of such Foreign Affiliate;
(g) all of such Foreign Affiliate's right, title and
interest in and to the Waters Intellectual Property used in
or constituting a part of the Business and all income,
royalties, damages and payments due at Closing or thereafter
with respect to any of the foregoing and all other rights
with respect thereto (including, without limitation, rights
to damages and payments for past, present or future
infringements or misappropriations thereof) in all
countries;
(h) all right, title and interest in and to all
contracts, commitments or other agreements (whether written
or oral) of such Foreign Affiliate relating to the Business;
and
(i) such of the Millipore Contributed Assets as are
held by such Foreign Affiliate.
(2) Sale of Domestic Assets. Subject to the terms and
conditions set forth herein, on the Closing Date, Purchaser (or
its designee(s)) shall purchase from Millipore and/or MIHL and
Millipore or MIHL, as the case may be, shall convey, set over,
assign, sell and deliver to Purchaser (or its designee(s)), free
and clear of all liens, claims or other encumbrances (except as
may be otherwise expressly permitted by this Agreement) all
right, title and interest of Millipore in and to all of the
properties, assets and rights used exclusively in or relating
exclusively to the Business as well as the TOF and ConSep
Technology) (the "Domestic Assets"), including, without
limitation:
(a) all real property, leaseholds and subleaseholds
therein, improvements, fixtures, and fittings thereon, and
easements, rights-of-way and other appurtenants thereto
(such as appurtenant rights in and to public streets), owned
or leased by Millipore and used in or related to the
Business;
(b) all accounts receivable of Millipore attributable
to the Business;
(c) all machinery, equipment, inventories, raw
materials, supplies, spare parts, work-in-process, finished
goods and other items of personal property of Millipore used
in or related to the Business;
(d) all right, title and interest in and to all
contracts, commitments, or other agreement (whether written
or oral) of Millipore relating to the Business;
(e) all prepaid expenses, advances and deposits of
Millipore attributable to the Business;
(f) all causes of action, demands, judgments, claims
(including insurance claims), indemnity rights or other
rights relating to the Domestic Assets or the Business or
arising under express or implied warranties from suppliers
with respect to the Domestic Assets;
(g) all of Millipore's or MIHL's, as the case may be,
right, title and interest in and to the Waters Intellectual
Property used in or forming a part of the Business and all
income, royalties, damages and payments due at Closing or
thereafter with respect to any of the foregoing and all
other rights with respect thereto (including without
limitation rights to damages and payments for past, present
or future infringements or misappropriations thereof) in all
countries;
(h) all governmental permits and consents relating to
the Business, to the extent such permits and consents are
transferable;
(i) all right, title and interest of Millipore in and
to the Business as a going concern;
(j) copies of all books and records of Millipore
relating to the ownership and operation of the Business,
including but not limited to correspondence, employment
records, production records, accounting records, property
records, mailing lists, customer and vendor lists,
intellectual property prosecution files, and regulatory
files (including master files);
(k) all other assets and properties of Millipore
relating to the Business, whether tangible or intangible,
real, personal or mixed; and
(l) such of the Millipore Contributed Assets as are
held by Millipore or MIHL.
2.3. Assumption of Certain Obligations. Subject to the
terms and conditions set forth herein, Purchaser (or its
designee(s)) shall assume and agree to discharge and perform when
due the liabilities and obligations (other than the Excluded
Liabilities) of Millipore and each Foreign Affiliate, each with
respect to the Business and which are (i) reflected on the
Balance Sheet or incurred subsequent to the date thereof in the
ordinary course of business consistent with past practice and
(ii) those liabilities and obligations as are enumerated below
(collectively, the "Assumed Liabilities"):
(a) liabilities and obligations of Millipore and such
Foreign Affiliates under any purchase order, sales order,
lease, agreement or commitment of any kind by which
Millipore and such Foreign Affiliate is bound on the Closing
Date which was made in the ordinary course of business in
accordance with past custom and practice and which is
assigned to Purchaser (or its designee(s)) pursuant to
Section 2.2(i) of this Agreement, and to the extent such
liabilities and obligations relate to performance after the
Closing Date;
(b) liabilities and obligations of Millipore and such
Foreign Affiliates under permits, licenses, governmental
orders, directives and agreements which were issued to
Millipore and such Foreign Affiliates in the ordinary course
of business in accordance with past custom and practice
prior to the Closing Date and are assigned to Purchaser (or
its designee) pursuant to the provisions of Section 2.2
hereof, to the extent such liabilities and obligations have
been disclosed to Purchaser herein and relate to performance
after the Closing Date;
(c) liabilities and obligations to repair or replace
products manufactured or sold by the Waters Division prior
to the Closing Date in accordance with the Waters Division's
limited product warranty; and
(d) the remainder of the liabilities and obligations
as of the Closing of the 1993 restructuring liabilities
reflected in the $3.7 million accrual on the Balance Sheet
(the "Remaining Restructuring Accrual").
2.4. Excluded Liabilities. Notwithstanding anything to the
contrary contained in this Agreement, Purchaser will not assume
or in any way become liable for, and Sellers will retain and
remain responsible for, any of Sellers' debts, liabilities or
obligations of any nature whatsoever (other than the Assumed
Liabilities) (the "Excluded Liabilities"), whether accrued,
absolute or contingent, whether known or unknown, whether due or
to become due, including without limitation the following:
(a) liabilities or obligations of Sellers to third
parties which may arise by reason of or with respect to this
Agreement or any of the transactions contemplated hereunder
(including, without limitation, legal, accounting,
brokerage, investment banking or finders' fees);
(b) liabilities or obligations for Taxes (i) incurred
with respect to the Business for periods (or portions
thereof) on or prior to the Closing Date or (ii) not
incurred with respect to the Business;
(c) liabilities arising from or relating to facts,
events or conditions existing on or prior to the Closing
Date and arising under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (CERCLA),
as amended, or any analogous federal, state, local or
foreign Environmental Laws;
(d) liabilities arising from or relating to the soil
and groundwater contamination in the underground chemical
and waste storage tank area located at Millipore's Taunton,
Massachusetts facility; and
(e) liabilities arising from or relating to the letter
dated February 1, 1994 from the United States Environmental
Protection Agency to Millipore relating to Millipore's
Milford, Massachusetts facility attached as Exhibit D
hereto.
2.5. Purchase Price.
(a) Subject to adjustment as provided in Section 2.6,
in consideration of (i) the assignment, transfer, conveyance
and delivery by Millipore France of the Waters France Stock
and by MIHL of the WIL Stock to Purchaser (or its
designee(s)), (ii) the sale of the Purchased Assets by
Millipore and each Foreign Affiliate to the Purchaser (or
its designee(s)) and (iii) the other agreements of Millipore
and MIHL stated herein, Purchaser (or its designee(s)) will
pay and Millipore will receive $360,000,000 (the "Purchase
Price") and the Purchaser (or its designee(s)) shall assume
the Assumed Liabilities.
(b) The parties agree that the Purchase Price and the
Assumed Liabilities shall be allocated (i) between and among
the Purchased Assets, the WIL Stock, the Waters France
Stock, the Transition Services Agreement in accordance with
the rules of Section 1060 of the Internal Revenue Code and
the regulations promulgated thereunder, and (ii) between and
among the assets held directly or indirectly by WIL and its
subsidiaries in accordance with Section 8.1.5(iii).
Purchaser shall, on or prior to the ninetieth (90th) day
following the Closing Date, prepare and deliver to Millipore
a schedule for allocating the Purchase Price to the
Purchased Assets, the WIL Stock, the Waters France Stock and
the Transition Services Agreement which schedule shall be
reasonably satisfactory to Millipore. The allocations
agreed to in the previous sentence shall be used by all
parties to this agreement (and their affiliates) for all
purposes (including financial, accounting and tax purposes).
2.6. Adjustment to Purchase Price. (a)(i) Promptly after
the Closing Date, Purchaser shall prepare an unaudited balance
sheet as of the close of business on the day immediately
preceding the Closing for the Business (the "Closing Balance
Sheet") for purposes of determining the Closing Net Asset Value
of the Business on the Closing Date. For purposes of this
Section 2.6, "Closing Net Asset Value" shall mean the value of
the Purchased Assets, minus the Business' liabilities (other than
the Excluded Liabilities and the Remaining Restructuring
Accrual); provided, that (x) the Millipore Contributed Assets
shall be excluded from all calculations made pursuant to this
Section 2.6(a), and (y) all calculations and determinations made
pursuant to this Section 2.6 shall be in accordance with
Millipore GAAP. On or prior to the forty-fifth (45th) day
following the Closing Date, Purchaser shall deliver to Millipore
the Closing Balance Sheet together with the Purchaser's
determination of the Closing Net Asset Value.
(ii) If the Closing Net Asset Value exceeds
$152,795,000 (the "Target Value"), then Purchaser shall pay to
Millipore an amount equal to such excess within 10 days after the
Closing Net Asset Value has been finally determined pursuant to
this Section 2.6.
(iii) If the Target Value exceeds the Closing Net
Asset Value, Millipore shall pay to Purchaser an amount equal to
such excess within 10 days after the Closing Net Asset Value is
finally determined pursuant to this Section 2.6.
(b)(i) If the Closing occurs before July 2, 1994,
there shall be a further adjustment to the Purchase Price
pursuant to this Section 2.6(b). In such event, Purchaser shall,
promptly after the Closing Date, prepare (a) an unaudited income
statement for the fiscal quarter ending July 2, 1994 (the
"Quarterly Income Statement") for purposes of determining Quarter
Income (Loss) and (b) an unaudited income statement for the
portion of such fiscal quarter ending on the day preceding the
Closing Date (the "Quarter Stub Income Statement") for purposes
of determining Quarter Stub Income (Loss). For purposes of this
Section 2.6(b), "Quarter Income (Loss)" and "Quarter Stub Income
(Loss)" shall mean the income before corporate allocations and
income taxes (as such terms are used in the Waters Division
Financial Statements for the year ended December 31, 1993) of the
Business for each such period; provided, that all calculations
and determinations pursuant to this Section 2.6(b) shall be in
accordance with Millipore GAAP (assuming, for purposes of
determining Quarter Income, that the Closing did not occur). For
purposes of this Section 2.6, "Pro Rata Income (Loss)" shall mean
Quarter Income (Loss), divided by the number of days in the
fiscal quarter ended July 2, 1994, multiplied by the number of
days during such quarter prior to the Closing Date. On or prior
to the forty-fifth (45th) day following the Closing Date,
Purchaser shall deliver to Millipore Purchaser's determination of
Quarter Income (Loss), Pro Rata Income (Loss) and Quarter Stub
Income.
(ii) If Pro Rata Income exceeds Quarter Stub Income,
Purchaser shall pay to Millipore an amount equal to Pro Rata
Income, minus Quarter Stub Income (or, plus an amount equal to
Quarter Stub Loss), multiplied by .83.
(iii) If Quarter Stub Income exceeds Pro Rata Income,
Millipore shall pay to Purchaser an amount equal to Quarter Stub
Income, minus Pro Rata Income.
(c)(i) If the Closing occurs after July 2, 1994, there
shall be a further adjustment to the Purchase Price pursuant to
this Section 2.6(c). In such event, Purchaser shall, promptly
after the Closing Date, prepare an unaudited balance sheet as of
July 2, 1994 and an income statement for the period beginning on
the first day of the next fiscal quarter and ending on the day
preceding the Closing Date (the "July Stub Statement") for
purposes of determining July Stub Income (Loss) determined in
accordance with the same method for determining Closing Net Asset
Value pursuant to Section 2.6(a) above. For purposes of this
Section 2.6, "July Stub Income (Loss)" shall mean the income
before corporate allocations and income taxes (as such terms are
used in the Waters Division Financial Statements for the year
ended December 31, 1993) of the Business for such period;
provided, that all calculations and determinations pursuant to
this Section 2.6(b) shall be in accordance with Millipore GAAP.
On or prior to the forty-fifth (45th) day following the Closing
Date, Purchaser shall deliver to Millipore Purchaser's
determination of July Stub Income (Loss).
(ii) Within ten (10) days after July Stub Income
(Loss) has been finally determined pursuant to this Section 2.6,
Purchaser shall pay Millipore an amount equal to the sum of
(A) July Stub Loss, if any, multiplied by .83, plus
(B) the product of (x) 8% multiplied by .83 multiplied by
$360,000,000, divided by 365, and (y) the number of days that
have elapsed since the end of the last fiscal quarter of the
Business through the day preceding the Closing Date, minus
(C) July Stub Income, if any, multiplied by .83.
(d) If the Closing occurs on July 2, 1994, there shall
be no further adjustment to the Purchase Price pursuant to this
Section 2.6 other than as required by 2.6(a) hereof.
(e) All payments required by this Section 2.6 shall be
made in cash to the party entitled thereto, with interest from
and including the Closing Date to but excluding the date of
payment at the prime rate from time to time announced by The
First National Bank of Boston.
(f) If Millipore disagrees with any Purchaser
determination pursuant to this Section 2.6, Millipore shall
notify Purchaser in writing of such disagreement within thirty
(30) days after delivery of Purchaser's determination (such
notice setting forth the basis for such disagreement in
reasonable detail), and Purchaser and Millipore thereafter shall
negotiate in good faith to resolve any such disagreements. If
Purchaser and Millipore are unable to resolve any such
disagreements within thirty (30) days after Millipore delivers
such notice to Purchaser, Purchaser and Millipore shall submit
the dispute to an independent auditor (which shall be a
nationally recognized accounting firm) (the "Independent
Auditor") for resolution, which Independent Auditor shall be
selected in the same manner as arbitrators are selected pursuant
to Section 12.10(c) hereof.
(g) Purchaser and Millipore shall use their best
efforts to cause the Independent Auditor to resolve all
disagreements pursuant to this Section 2.6, but in any event
within sixty (60) days after submission of the disputes to the
Independent Auditor, the resolution of such disagreements shall
be final and binding on Purchaser and Millipore. The Independent
Auditors shall comply with the definitions used herein, shall
follow the procedures set forth in this Agreement and shall
comply with all other applicable terms of this Agreement.
(h) The Independent Auditor will determine the
allocation of the costs and expenses of its determination
pursuant to this Section 2.6 based upon the percentage which the
portion of the contested amount not awarded to each party bears
to the amount actually contested by such party. For example, if
Millipore claims the Closing Net Asset Value is $1,000 greater
than the amount determined by Purchaser, and Purchaser contests
only $500 of the amount claimed by Millipore, and if the
Independent Auditor ultimately resolves the dispute by awarding
Millipore $300 of the $500 contested, then the costs and expenses
of arbitration will be allocated 60% (i.e., 300/500) to
Purchaser and 40% (i.e., 200/500) to Millipore.
(i) Any adjustments to the Purchase Price shall be
allocated among the assets purchased in the same manner as
described in Section 2.5(b).
3. Closing.
3.1. Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be held, upon five (5)
business days notice from the Purchaser to Millipore, at 10:00
A.M. on the first day upon which all of the conditions set forth
in Section 7.3, 7.4 and 7.5 have been satisfied or waived (the
"Closing Date"), in New York City, New York or at such other
location and time or on such other date (subject to Section 13
below) as the parties may agree.
At the Closing:
3.1.1. Delivery of Waters France Stock by Millipore
France and of WIL Stock by MIHL. Millipore France and MIHL,
respectively, will deliver to Purchaser (or its designee)
certificates representing the Waters France Stock and the WIL
Stock, duly endorsed or accompanied by separate stock powers, in
each case in proper form for transfer.
3.1.2. Payment to Millipore and MIHL. Purchaser (or
its designee) will deliver to Millipore and MIHL, respectively,
certified or official bank check or wire transfer of immediately
available funds in the amount of their respective portions of the
Purchase Price.
3.1.3. Delivery of Separate Deeds, Bills of Sale and
Assignments with respect to the Purchased Assets. Millipore
shall deliver to Purchaser (or its designee(s)) separate deeds,
bills of sale and assignments or such other instruments of
transfer which are necessary or desirable to effect the sale and
transfer to the Purchaser of the Purchased Assets, including any
such instruments which may be required under the laws of the
jurisdiction of each Seller for the Purchased Assets to be
acquired by the Purchaser (or its designee(s)) pursuant to this
Agreement.
3.1.4. Instruments of Assumption of Liabilities.
Purchaser shall deliver to Millipore instruments of assumption or
such other instruments which are necessary to effect the
assumption of the Assumed Liabilities by Purchaser, including any
such instruments which may be required under the laws of the
jurisdiction of each Seller duly executed by the Purchaser (or
its designee(s)) with respect to the Assumed Liabilities.
3.1.5. Certificates, Opinions, etc. Each party will
deliver to the other such certificates, opinions and other
documents as are contemplated hereby or as may reasonably be
requested by the other party to evidence compliance with the
terms hereof.
3.1.6. Transfer Taxes. Millipore shall pay or cause
to be paid all transfer, sales, use, stamp and recording and
other Taxes imposed by reason of the transactions contemplated in
this Agreement.
4. Representations and Warranties of Millipore and MIHL. For
purposes of this Section 4, except as the context otherwise
indicates, references to "Millipore" include Millipore and its
subsidiaries, including MIHL, the Foreign Affiliates and
Millipore France, and references to "WIL" include WIL and its
Subsidiaries. Without limiting the foregoing, where a
representation is made covering a period of time in which the
Business was operated initially by Millipore and later by WIL,
the representation shall be deemed to be made by Millipore
relative to the period prior to the transfer of the assets and
Business to WIL, including the transfer of the assets and the
Business by Millipore France to Waters France, Nihon Millipore to
Nihon Waters and by Millipore Asia to Waters Asia after the
respective Contribution Dates, and by WIL relative to the period
after such transfer up to the Closing.
Except as set forth or disclosed on the Schedules to this
Agreement, Millipore and MIHL, joint and severally, represent and
warrant to and agree with the Purchaser that (it being understood
that no Purchaser Indemnified Party (as defined in Section 12.1
below) shall be entitled to make any claim for indemnification
pursuant to Section 12.1(a) if the Damages (as defined in Section
12.7) the Purchaser Indemnified Parties may suffer, sustain or
become subject to, as a result of a particular breach of any
representation or warranty contained in this Section 4 are less
than $100,000; provided, that (A) if the Damages related to such
claim equals or exceeds $100,000, any Purchaser Indemnified Party
shall be entitled to make a claim for indemnification under
Section 12.1(a) with respect to such particular breach for the
entire amount of the Damages related thereto, and (B) for
purposes of this provision, any claim or series of claims arising
out of or relating to the same or related facts, circumstances,
occurrences, transactions or conditions shall constitute one
claim with respect to any particular breach):
4.1. Corporate Status. Each of Millipore and WIL is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has all
necessary corporate power and authority to own and operate its
properties and carry on its business as now conducted. Each of
Millipore and WIL is duly qualified to do business and in good
standing as a foreign corporation in each of the jurisdictions
specified in Schedule 4.1, which includes each jurisdiction in
which the nature of its business or the property owned or leased
by the Waters Division makes such qualification necessary, except
where the failure to be so qualified does not have a material
adverse effect on the assets, liabilities, business or financial
condition of the Business (a "Material Adverse Effect").
Millipore has delivered to Purchaser a complete and correct copy
of the charter and by-laws, as amended to date, of WIL, and will
at least 10 business days prior to the Closing Date deliver to
Purchaser complete and correct copies (in English) of the charter
and by-laws of Waters France. WIL and Waters France are not in
default under or in violation of any provision of their
respective charter and by-laws.
4.2. Capitalization and Ownership of Shares. The
authorized capital stock of WIL consists of 10,000 shares of
common stock, $1.00 par value. MIHL owns, of record and
beneficially all of the WIL Stock, which consists of 1,000 shares
of common stock and represents all of the issued and outstanding
shares of capital stock of WIL, free and clear of all liens,
claims, charges, encumbrances and restrictions. The authorized
capital stock of Waters France consists of 2,500 shares of common
stock, 100 French Francs par value. Millipore France owns, of
record or beneficially, all of the Waters France Stock, free and
clear of all liens, claims, charges, encumbrances and
restrictions. No other person or entity has or shares any direct
or indirect interest or right with respect to the Waters France
Stock or the WIL Stock. The Waters France Stock and the WIL
Stock have been duly authorized and validly issued and are fully
paid and nonassessable. There are no preemptive rights or rights
of first refusal or similar rights on the part of any holder of
any class of securities of Waters France or WIL or any other
person. There are no options, warrants, conversion or other
rights, agreements or commitments of any kind obligating Waters
France or WIL, contingently or otherwise, to issue or sell any
shares of its capital stock of any class or any securities
convertible into or exchangeable for any such shares, and no
authorization therefor has been given. Millipore and MIHL have,
respectively, full right, power and authority to transfer the
Waters France Stock and the WIL Stock to Purchaser or its
designee, free and clear of any liens, claims, encumbrances,
charges or restrictions, and such transfer will not constitute a
breach or violation of, or a default under, any agreement or
instrument by which Millipore or MIHL is bound.
4.3. Subsidiaries. Schedule 4.3 sets forth the name,
country and/or jurisdiction and corporate form of each subsidiary
of WIL, (each a "Subsidiary" and collectively "Subsidiaries").
Except as set forth on Schedule 4.3, WIL owns beneficially and of
record all of the outstanding capital stock of each Subsidiary,
free and clear of all liens, claims, encumbrances, charges or
restrictions. Each Subsidiary is duly organized and validly
existing under the laws of the country or jurisdiction in which
it is located and has all necessary corporate power and authority
to carry out that portion of the Business conducted by it or to
be conducted by it after the Contribution Dates. Millipore has
heretofore delivered or will within 15 days of the date hereof
deliver to Purchaser a complete and correct copy of the
organization and governing documents, each as amended to date, of
each Subsidiary. Waters France has no subsidiaries and, except
as set forth on Schedule 4.3, neither WIL nor Waters France has
any other obligation to contribute to the capital of any other
enterprise.
4.4. Authority. Millipore, Millipore France and MIHL have
all requisite power and authority to execute, deliver and perform
this Agreement and all other Documents, and have taken all
necessary corporate action to authorize the execution, delivery
and performance of this Agreement and the other Documents and to
consummate the transactions contemplated by this Agreement and
the other Documents in accordance with the provisions hereof and
thereof. This Agreement has been duly executed and delivered by
Millipore, Millipore France and MIHL, and each other Document or
instrument executed or to be executed by Millipore, Millipore
France and MIHL pursuant hereto and upon execution and delivery
will have been duly executed and delivered, and this Agreement
constitutes, and each other Document and instrument will
constitute, when executed, the legal, valid and binding
obligation of each of Millipore, Millipore France and MIHL,
enforceable in accordance with its terms, subject to
(i) bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the rights and remedies of creditors
generally and (ii) general principles of equity regardless of
whether enforcement is sought in proceedings in equity or at law
(the "Remedies Exception").
4.5. No Conflict. The execution and delivery of this
Agreement and the other Documents, the consummation of the
transactions contemplated hereby and thereby, and the compliance
with the terms and conditions hereof and thereof (i) will not
conflict with, or result in a breach of, (1) any relevant
statute, law, ordinance, rule, regulation, order, injunction or
decree applicable to Millipore, each Foreign Affiliate, WIL or
its Subsidiaries, Waters France, or the Business, or (2) the
terms, conditions or provisions of the Articles of Organization,
Certificate of Incorporation or the By-laws of Millipore, Waters
France or WIL or any charter documents or by-laws of any
Subsidiary or (3) any material mortgage, lease, agreement, or
other instrument or any judgment, order or decree to which
Millipore, Waters France or WIL is a party or by which it or its
properties are bound or which otherwise relates to the Business,
(ii) will not result in the termination of, or require any
consent under (other than consents listed in Schedule 4.10
hereof), any of the items listed in clause (i)(3) of this
Section 4.5, (iii) will not constitute, with or without the
giving of notice or the passage of time or both, a default under
any of the foregoing, and (iv) will not accelerate or
constitute, with or without the giving of notice or the passage
of time or both, grounds for acceleration of any obligation under
any of the items listed in clause (i)(3) of this Section 4.5, or
(v) modify or result in the creation of any lien, security
interest, charge or encumbrance upon any of the assets or
properties used in or relating to the Business (including,
without limitation, the Waters France Stock and WIL Stock), the
maturity of any indebtedness relating to the Business.
4.6. Financial Statements; Assets and Business. (a)
Millipore and WIL maintain (and Millipore has caused the Foreign
Affiliates to maintain) accurate and complete records and books
of account which include accounts related to the Waters Division
in which appropriate entries are made of all dealings and
transactions relating to the Business in conformity with GAAP,
consistently applied. The transactions entered therein represent
bona-fide transactions and such accounts fairly reflect the
Waters Division's income, expenses, assets (except such assets as
constitute Millipore Contributed Assets) and liabilities.
Attached hereto as Schedule 4.6 are copies of the Waters Division
Financial Statements, accompanied by a report from Coopers &
Lybrand, Millipore's independent public accountants, to the
effect that they have performed an audit of the Waters Division
Financial Statements and the Waters Division Financial Statements
present fairly, in all material respects, the combined financial
position of the Waters Division and the combined results of
operations and cash flows as of and for the periods then ended as
specified in the Waters Division Financial Statements in
conformity with GAAP.
The Waters Division Financial Statements are in accordance
with the books and records of Millipore, accurately reflect the
transactions, assets and liabilities of the Waters Division and
the Business, and fairly present the financial condition and
results of operations of the Waters Division as of the dates and
for the periods indicated as specified in the Waters Division
Financial Statements in accordance with GAAP, consistently
applied. The sales figures set forth in the income statements
contained in the Waters Division Financial Statements do not
reflect sales of any products or services (other than in
immaterial amounts) that Purchaser would be prohibited or
restricted from selling after the Closing pursuant to any
covenant or provision of this Agreement or any Document.
(b) The Purchased Assets, the Waters Intellectual
Property, the WIL Stock, the Waters France Stock and the
Millipore Contributed Assets comprise all of the assets and
rights necessary for the conduct of the Business as such business
was conducted at December 31, 1993, subject to such support and
incidental services performed by employees of Millipore on the
date hereof and to be performed by Millipore pursuant to the
Transition Services Agreement.
4.7. No Undisclosed Liabilities, etc. Neither Millipore
nor WIL has, with respect to the Business, any liabilities,
obligations or commitments accrued, absolute, contingent or
otherwise, of a nature required by GAAP to be reflected or
reserved against in a balance sheet or disclosed in the notes
thereto, except (a) liabilities and obligations fully reflected
or reserved against in the Balance Sheet or disclosed in the
notes thereto, (b) liabilities and obligations incurred in the
ordinary course in accordance with past custom and practice of
the Business and not in violation of this Agreement since
December 31, 1993, and (c) liabilities and obligations disclosed
in Schedule 4.7 hereof and the other Schedules to this Agreement.
Millipore is not aware of any event or state of facts which will
give rise to future liabilities except for liabilities which
arise in the conduct of the Business in the ordinary course in
accordance with past custom and practice.
4.8. Inventories; Accounts Receivable. The items reflected
in or covered by the designation "Inventories" (including without
limitation raw materials, work in process, purchased components,
supplies and finished goods) on the Balance Sheet, consist of
items of good quality and condition saleable at customary prices
and usable in the normal course of the Business subject to the
reserves for inventory write down of obsolete and slow moving
inventories shown on the Balance Sheet. The accounts receivable
of the Business shown on the Balance Sheet are genuine, valid,
binding and subsisting, arose out of bona fide sales and
deliveries of goods or the performance of services in the
ordinary course of the Business in accordance with past custom
and practice and are collectible, subject to no defenses,
counterclaims or set-offs, in the ordinary course of the
Business, subject to the reserve for doubtful accounts shown on
the Balance Sheet. Such reserves for doubtful accounts, returns
and allowances and for obsolete and slow moving inventories are
reasonable and appropriate on the basis of the Waters Division's
prior experience, and are in accordance with GAAP, consistently
applied.
4.9. Compliance with Laws.
(i) Except as otherwise disclosed in Schedule 4.9, to the
best of Millipore's and WIL's knowledge, each of Millipore, WIL
and Waters France has complied with and is in compliance in all
material respects with all applicable United States federal,
state and local and foreign laws, regulations, ordinances,
judgments, orders, decrees, licenses, permits or authorizations,
which affect the Waters Division or the Business, including,
without limitation, those relating to health, safety, civil
rights, labor matters, or contributions, expenditures, gifts or
other payments to or from federal, state, local or foreign
governmental officials or others and those administered by the
United States Food and Drug Administration ("FDA"). Neither
Millipore, WIL nor Waters France has received any notice of, and
no requests or claims have been filed, made or asserted with
respect to any alleged past or present non-compliance with any of
the foregoing. The facilities owned or operated by the Business
which are subject to FDA regulations are in compliance with
Current Good Manufacturing Practices. All material permits,
concessions, grants, certificates of occupancy, franchises,
licenses, registrations and other governmental authorizations and
approvals necessary to own the Purchased Assets and conduct the
Business, have been duly obtained and are in full force and
effect, and there are no proceedings pending or, to the best of
Millipore's or WIL's knowledge, threatened, which may result in
the revocation, cancellation or suspension of any thereof, or any
adverse modification thereof. The consummation of the
transactions contemplated hereby will not result in any
violation, revocation, cancellation, suspension or modification
of any of the foregoing.
(ii) Without limiting the foregoing, and except as
described in Schedule 4.9, Millipore, WIL and its Subsidiaries
and, to the best of Millipore's knowledge, each of the Foreign
Affiliates and their respective assets, personnel and operations
are not in violation of any decree, order or arbitration award,
any law, statute or regulation or any agreement, or any license,
authorization or permit from, any federal, state, local or
foreign governmental authority or court relating to occupational
health and safety or the environment (including, without
limitation, federal, state, local and foreign laws, statutes,
rules and regulations relating to environmental matters and
contamination of any type, including: (i) treatment, storage,
disposal, generation and transportation of industrial, toxic or
hazardous substances or solid or hazardous waste, (ii) air, water
and noise pollution; (iii) ground water contamination; (iv) the
release or threatened release into the environment of industrial,
toxic or hazardous substances, or solid or hazardous waste,
including without limitation emissions, discharges, injections,
spills, escapes, or dumping of pollutants, contaminants or
chemicals; (v) the protection of wildlife, marine sanctuaries and
wetlands; (vi) underground or other storage tanks or vessels,
abandoned or discarded barrels, containers and other closed
receptacles; (vii) health and safety of employees and other
persons; or (viii) otherwise relating to the manufacture,
processing, use, distribution, treatment, storage, disposal,
transportation, or handling of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or solid
or hazardous waste (collectively, "Environmental Laws"))
Schedule 4.9 sets forth a complete list of all above-ground and
underground storage tanks, vessels and containers owned by
Millipore and/or WIL and its Subsidiaries and, with respect to
each Foreign Affiliate, known to Millipore and WIL, that are
subject to federal, state, local or foreign laws, statutes, rules
or regulations, and their current contents, and what program of
remediation, if any, is contemplated with respect thereto.
Neither Millipore, WIL nor any Foreign Affiliate have been
assessed for, or otherwise required to pay or agreed or consented
to pay in connection with the Waters Division or the Business any
costs, damages, liabilities or penalties in excess of $250,000
associated with any violation of any Environmental Law, except as
disclosed on Schedule 4.9.
4.10. Consents. Except as stated on Schedule 4.10, no
consent, approval, order or authorization of, registration,
declaration or filing with, or notice to, any governmental
authority or any other person is required in connection with the
execution and delivery of this Agreement or any of the Documents
by Millipore, Millipore France or MIHL or the consummation of the
transactions contemplated hereby or was required in connection
with the transfer of intellectual property rights or licenses to
WIL and has not yet been obtained.
4.11. Taxes. Millipore and WIL have filed all foreign,
federal, state and local Tax returns and other returns that are
required to have been filed in respect of the Waters Division and
the Business with respect to all periods ending on or prior to
the Closing Date and all such Tax Returns are correct and
complete to the best of Millipore's knowledge. Millipore and WIL
have paid all Taxes with respect to all periods (or portions
thereof) ending on or prior to the Closing Date (whether or not
shown on any Tax return or other return) in respect of the Waters
Division and the Business, or have adequately reserved for the
payment of such Taxes on the face of the Balance Sheet. Except
as provided in Schedule 4.11, neither Millipore nor WIL have
received any notice of deficiency or assessment of additional
Taxes relating to the Waters Division and the Business and they
are not parties to any action or proceeding by any governmental
authority for assessment or collection of Taxes in respect of the
Waters Division and the Business. There are no liens (other than
liens for Taxes not yet due and payable) on the WIL Stock, the
Waters France Stock, or any of the assets of the Waters Division
and the Business that arose in connection with any failure or
alleged failure to pay any Tax. No written claim has ever been
made by any jurisdiction in which Millipore or WIL do not file
Tax returns to the effect that they are or may be subject to any
Tax imposed by that jurisdiction with respect to the Waters
Division and the Business.
4.12. Property. Schedule 4.12 contains a complete and
correct list as of the date hereof of all real properties and
interests therein owned ("Owned Real Properties") or leased
("Leased Real Properties") as of the date hereof by Millipore and
WIL used in or relating to the Business.
4.12.1. Title; Encumbrances. Except as stated in
Schedule 4.12, Millipore and WIL have good and marketable fee
simple title to all Owned Real Properties and valid and binding
leasehold interests in all Leased Real Properties and good and
marketable title to all material tangible personal property
reflected in the Balance Sheet or acquired after such date
(except to the extent of property disposed of in the ordinary
course of business in accordance with past custom and practice
since such date), in each case free and clear of all mortgages,
liens, charges, encumbrances, easements, security interests or
title imperfections except (a) liens for current taxes not due
and payable or being contested in good faith by appropriate
proceedings by Millipore or WIL, and with respect to which all
reserves required by GAAP, consistently applied, have been
established; (b) liens securing indebtedness reflected on the
Balance Sheet which liens are listed on Schedule 4.12,
(c) purchase money security interests and liens securing rental
payments under leases incurred in the ordinary course of business
in accordance with past custom and practice which security
interests are listed on Schedule 4.12, (d) liens arising by
operation of law in favor of mechanics, materialmen and similar
parties for amounts which are not delinquent and which are not,
individually or in the aggregate, material to the Business or are
being contested in good faith by Millipore or WIL, (e) other
liens or encumbrances listed on Schedule 4.12 and (f) other
encumbrances on Owned Real Properties, such as easements and
other rights of record affecting title, that do not materially
interfere with the existing use of the Owned Real Properties or
materially detract from the value of the Owned Real Properties
for purposes for which it is used in connection with the Business
(the exceptions described in the foregoing clauses (a), (b), (c),
(d), (e) and (f) being referred to herein as "Permitted
Encumbrances"). With respect to the Owned Real Properties, no
person or entity other than Millipore or WIL has the right to use
or occupy any portion of the Owned Real Properties and no person
or entity other than Millipore or WIL is in possession thereof,
and there are no outstanding options or other rights to purchase
any portion of the Owned Real Properties. Upon the written
request of Purchaser's principal lending institutions, Millipore
shall provide to such lender institutions such representations
with respect to title to all of the real property included in the
Purchased Assets as such lending institutions may reasonably
request.
4.12.2. Leases. Each of Millipore and WIL enjoys
peaceful and undisturbed possession under all leases of Leased
Real Properties ("Land Leases") and personal property to which it
is a party and which, in the case of personal property leases,
require annual rental payments in excess of $25,000 ("Equipment
Leases"); to the best knowledge of Millipore, all such Land and
Equipment Leases are valid and subsisting; each of Millipore and
WIL has paid all rent due and payable under all such Land and
Equipment Leases, and there exists no material default thereunder
on the part of Millipore or WIL, or, to the best knowledge of
Millipore and WIL, the lessors, thereunder; Millipore or WIL has
provided to Purchaser true and correct copies of all Land and
Equipment Leases and none of the Land or Equipment Leases has
been modified in any respect, except to the extent that such
modifications are in writing and have been delivered or made
available to Purchaser.
4.12.3. Condition. Except as set forth in
Schedule 4.12, all structures and other improvements located on
the real property owned or leased by either of Millipore or WIL
and all tangible personal property owned or leased by either of
Millipore or WIL, which in each case are necessary for the
conduct of the Business, are in good operating condition in all
material respects for property of its type and age, subject to
ordinary wear and tear.
4.13. Patents, Technologies, etc. Schedule 4.13 hereto
contains a complete list of the patents, patent applications,
registered copyrights, copyright registration applications, mask
work registrations, mask work registration applications, patent
licenses, copyright licenses, software licenses which are
material to the Business, trademark licenses, trademark
registrations and trademark applications described in Section
1.17, as well as all licenses (a) by Millipore to the extent such
license relates to Waters Intellectual Property (b) from WIL or
its Subsidiaries to Millipore, MIHL and their respective
affiliates, (c) between WIL and its Subsidiaries and (d) by WIL
to third parties. The Waters Intellectual Property constitutes
all patents, patent applications, technologies, trade secrets,
trademarks, trade names, registrations and applications for
trademarks, copyrights, registrations and applications for
copyrights, mask works, registrations and applications for mask
works, software and other intellectual property and rights
therein necessary for the Business as currently conducted, and
all intellectual property and rights therein used in whole or in
part in the Business, or developed or acquired or under
development for use in whole or in part in the Business. Except
as disclosed in Schedule 4.13, no licenses, rights or interests
in or to any of the Waters Intellectual Property have been
granted by Millipore or WIL or any of its Subsidiaries to any
third party or by WIL or its Subsidiaries to any of Millipore,
MIHL or any of their respective affiliates. To the best of
Millipore's and MIHL's knowledge, the conduct of the Business
does not conflict with or infringe and has not conflicted with or
infringed any right of any third party, including, without
limitation, any patent, trademark, trade name, trade secret,
copyright, mask work or contract right. Except as disclosed in
Schedule 4.13, there are and have been no claims alleging any
such conflict or infringement or challenging the validity,
enforceability or ownership of any Waters Intellectual Property,
nor, to the best of Millipore's and MIHL's knowledge, does any
basis for any such claim exist. Except as disclosed in
Schedule 4.13, Millipore and MIHL have no knowledge, and have not
been informed by their counsel, that there exists any adversely
held patent, trademark, copyright, mask work, trade name, trade
secret, contract right or other intellectual property right. To
the best of Millipore's and MIHL's knowledge, no person, firm or
corporation is engaging or has engaged in any activity which
conflicts with or constitutes an infringement of any Waters
Intellectual Property. Except pursuant to confidentiality and
nondisclosure agreements which are on customary and commercially
reasonable terms and conditions and which Millipore reasonably
believes to be adequate and enforceable, neither Millipore, MIHL
nor WIL has disclosed to any third party any trade secret,
technology, design, process, method, know-how, or formula or
other Intellectual Property that is secret, confidential or
otherwise not a matter of public knowledge. Except as disclosed
in Schedule 4.13, WIL and its Subsidiaries own and possess all
right, record, legal and beneficial title and interest in and to,
or has a valid and enforceable license from a third party to use
the Waters Intellectual Property. All of the Waters Intellectual
Property is or will be owned by, or properly assigned or (in the
case of licenses) licensed from a third party to, WIL and its
Subsidiaries at the time of the Closing. The transactions
contemplated by this Agreement will have no Material Adverse
Effect on the right, title and interest in and to the Waters
Intellectual Property. The loss or expiration of any Waters
Intellectual Property right or related group of intellectual
property rights would not have a Material Adverse Effect on the
Business, and no such loss or expiration has occurred within the
past two (2) years or is threatened or pending.
4.14. Absence of Certain Changes. Except to the extent set
forth in Schedule 4.14 hereto, since December 31, 1993:
(a) there has been no material adverse change in the
Business, condition (financial or otherwise), operations,
manner of conduct of business or operations, prospects or
liabilities of the Waters Division;
(b) no liability of any nature in excess of $100,000
has been incurred, except in the ordinary course of the
Business in accordance with past custom and practice, and
neither Millipore nor WIL has increased, or made or
experienced any significant change in any assumptions
underlying or methods of calculating, any bad debt,
contingency or other reserves of the Business from such
assumptions or methods used in the preparation of the
Balance Sheet, nor has Millipore or WIL changed its cash
management practices, including with respect to the
collection of accounts receivable, payment of accounts
payable, or maintenance of inventory controls;
(c) no liability or obligation in excess of $50,000 to
the Business has been paid or discharged other than in the
ordinary course of business in accordance with past custom
and practice;
(d) Neither Millipore nor WIL has made any capital
expenditure or commitment for additions to property, plant
or equipment in respect of the Business, except for
expenditures in the ordinary course of business in
accordance with past custom and practice no one of which
exceeds $300,000 and which in the aggregate have not
exceeded $1,250,000;
(e) Neither Millipore nor WIL have disposed of,
assigned, licensed or permitted to lapse any material
licenses or permits or any material patent, trademark, trade
name, patent or trademark application or copyright, or other
intangible assets or any license to any of the foregoing in
respect of the Business or disposed of, licensed, assigned,
permitted to lapse or (except pursuant to non-disclosure
agreements listed in Schedule 4.18 hereto) disclosed to any
person any trade secret, design, method, formula, process or
know-how, or right thereto, material to the Business not
theretofore a matter of public knowledge;
(f) Except as set forth on Schedule 4.14, neither
Millipore nor WIL have granted any increase in the
compensation of employees employed in the Business or any
increase in the compensation of any employee whose salary
exceeds $100,000, whether now or hereafter payable,
including any such increase pursuant to any bonus,
commission, pension, profit sharing or other plan or
commitment; nor has Millipore or WIL made any promotions of
employees employed in the Business except promotions made in
the ordinary course of business in accordance with past
custom and practice; nor have they granted any severance or
termination pay except in the ordinary course of business in
accordance with past custom and practice nor entered into
any employment agreement with any person;
(g) Neither Millipore nor WIL has made any change in
any method of accounting or accounting practice with respect
to the Business;
(h) Neither Millipore nor WIL has suffered any damage,
destruction or loss in excess of $150,000 (whether or not
covered by insurance) to any of the properties, good will,
business or operations of the Business;
(i) Neither Millipore nor WIL has suffered any strike
or other labor trouble or become aware that any strike or
other labor trouble is threatened;
(j) Except as disclosed in Schedule 4.15 and except as
permitted by Section 4.15, neither Millipore nor WIL has
terminated or amended or suffered the termination or
amendment of any material contract, agreement, employee
benefit plan or license relating to the Business;
(k) Neither Millipore nor WIL has failed to perform in
any material respect their respective obligations or
suffered or permitted any material default to exist under
any material contact, lease or other agreement to which any
of them is a party or by which any of them may be bound
relating to the Business;
(l) Neither Millipore nor WIL in the conduct of the
business of the Waters Division has made any loans or
advances to, or guarantees for the benefit of, or entered
into any transaction with any employee, officer or director,
except for advances consistent with past custom and practice
made to employers, officers and directors for expenses
incurred in the ordinary course of business.
(m) Except as disclosed in Schedule 4.18, neither
Millipore nor WIL has entered into any material transaction
or contract or agreement relating to the Business, other
than in the ordinary course of business in accordance with
past custom and practice;
(n) Neither Millipore nor WIL has sold, leased,
disposed of, mortgaged, pledged or subjected to any material
lien or encumbrance, or waived any substantial rights,
assets or properties relating to, the Business (including,
without limitation, any of the Purchased Assets), except for
sales or leases of, products of the Business in the ordinary
course of business in accordance with past custom and
practice and Permitted Encumbrances;
(o) Neither Millipore nor WIL has entered into any
Land Lease or any Equipment Lease of the Business requiring
annual payments in excess of $50,000;
(p) Neither Millipore nor WIL has taken or permitted
to occur any action or condition that would constitute a
violation of clause (i), (ii) or (v) of Section 7.1 hereof
had it occurred or existed between the date hereof and the
Closing Date; or
4.15. ERISA Plans.
4.15.1. Definition. For purposes of this Section
4.15, the term "Plan" means any employee benefit plan (as defined
in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), and each other material retirement,
profit sharing, deferred compensation, incentive compensation,
bonus, stock option, stock purchase, severance pay, vacation pay,
post-retirement medical, accident, disability, salary
continuation, health, life or other insurance, fringe benefit, or
other employee benefit plan, program, agreement, or arrangement
or material fringe benefit plan or program, currently maintained
by Millipore or WIL for the benefit of the employees of the
Waters Division. The plans which are maintained by WIL or
Millipore for the benefit of U.S. based employees of the Waters
Division shall be referred to herein collectively as the "Plans",
and those which are maintained by WIL or Millipore for employees
located outside of the U.S. shall be referred to herein
collectively as the "Foreign Plans." Schedule 4.15 also includes
a list of each material written employment, severance,
termination or similar-type agreement between any of Millipore,
WIL or their affiliates and any employee of the Waters Division
(the "Employment Agreements"). Except as otherwise disclosed on
Schedule 4.15, the execution and delivery of this Agreement by
the Sellers and the performance of the Agreement by each of the
Sellers will not directly result now or at any time in the future
in the payment to any Transferred Employee of any severance,
termination, "parachute payment" (as such term is defined in
Section 280G of the Code) or similar-type payments or benefits.
For purposes of this Agreement, the term "Transferred Employee"
means all individuals who are employed by any Seller immediately
prior to the Closing and who become employees of the Purchaser
(or any subsidiary of the Purchaser) as of the Closing Date or at
any time thereafter during the term of the Transition Services
Agreement. The term "Foreign Transferred Employee" shall mean
each Transferred Employee which is located outside of the United
States, and the term "US Transferred Employee" shall mean each
Transferred Employee who is located within the United States.
4.15.2. Schedule of Employee Benefit Plans. Schedule
4.15 includes a true and complete list, as of the date of this
Agreement, of all Plans and Foreign Plans. True, current and
complete copies of all of the Plans, all amendments and written
interpretations with respect thereto, if any, and, to the extent
applicable, copies of the most recent of the following have been
furnished to Purchaser with respect to each Plan: (i) the most
recent determination letter of the Internal Revenue Service
("IRS") and any outstanding request for a determination letter;
(ii) Form 5500 and required attachments with respect to the last
two plan years for each Plan; and (iii) summary annual reports.
4.15.3. Compliance with Terms of Plans. There has
been no material violation of any term of any Plan.
4.15.4. Compliance with Applicable Law. Each Plan and
each funding vehicle related to such Plan is currently in
compliance in all material respects with, and has been
administered and operated in all material respects in compliance
with all applicable statutes, orders, rules and regulations
except as disclosed on Schedule 4.15. The requirements of Part 6
of Subtitle B of Title I of ERISA and of Code Section 4980B have
been met in all material respects with respect to each Plan which
provides medical coverage to employees. Each Plan which is
intended to be a "qualified plan" as described in Section
401(a)of the Internal Revenue Code of 1986, as amended (the
"Code") has received a favorable determination letter from the
IRS and Millipore does not know of any fact or facts since the
date of such determination letter which might adversely affect
such qualification.
4.15.5. Multiemployer Plan. Neither Millipore nor WIL
contributes to or has ever contributed to a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
4.15.6. VEBAs. Except as set forth on Schedule 4.15,
no Plan is funded by, associated with or related to a "voluntary
employees' beneficiary association" within the meaning of Code
Section 501(c)(9).
4.15.7. Contributions. Each Seller has made or will
make prior to the Closing Date all payments and contributions
(including insurance premiums) due and payable as of the Closing
Date to each Plan as required to be made under the terms of such
Plan.
4.15.8. Prohibited Transactions. With respect to all
Plans and related trusts, Millipore knows of no "prohibited
transaction," as that term is defined in Section 406 of ERISA,
that has occurred which is likely to subject any Plan, related
trust or party dealing with any such Plan or related trust to any
material tax or penalty on prohibited transactions imposed by
Section 502(i) of ERISA or Section 4975 of the Code.
4.15.9. No Claims against the Plans. There are no
actions, suits, arbitrations or claims (other than routine claims
for benefits by employees, beneficiaries or dependents arising in
the normal course of operations of a Plan) pending, or to the
best knowledge of Millipore, threatened, with respect to any Plan
or any fiduciary or sponsor of the Plan with respect to their
duties under such Plan or the assets of any trust under any such
Plan.
4.15.10. Transfer of Assets to Plan. (i) Effective
as of the Closing Date, Purchaser will establish a defined
benefit plan ("Replacement Defined Benefit Plan") and a defined
contribution plan ("Replacement Defined Contribution Plan")
(collectively the "Replacement Plans") and Millipore shall
transfer from the Retirement Plan for Employees of Millipore
Corporation ("Retirement Plan") and the Millipore Corporation
Employees' Participation and Savings Plan ("Participation Plan")
(collectively the "Millipore Retirement Plans") to the respective
Replacement Plans the assets (in accordance with clauses (iv) or
(v) below, as the case may be) and liabilities which are
attributable to the Transferred Employees who are participants in
the Millipore Retirement Plans. The Transferred Employees shall
be given credit in such Replacement Plans for all service with
and compensation from Millipore through the Closing Date to the
extent taken into account under the Millipore Retirement Plans as
if it were service with and compensation from the Purchaser for
purposes of determining eligibility for benefits and the amount
of any benefits or benefit accruals under the Replacement Plans.
The Transferred Employees shall be fully vested in all benefits
or benefit accruals under the Millipore Retirement Plans and
under the Replacement Plans to the extent of the benefits
transferred from the Millipore Retirement Plans.
(ii) Within 30 days after the Closing Date, Millipore shall
file Forms 5310-A in respect to the transfers contemplated by
this Section 4.15.10. The transfers shall be made as soon as
practicable following the valuation or determination of amounts
as described below, but in no event prior to the thirtieth day
following the filing of such Forms 5310-A with the Internal
Revenue Service (or, in the event the Internal Revenue Service
raises any objections to the transfer, the date as of which the
Internal Revenue Service withdraws such objections or is
satisfied that the terms of the transfer have been modified to
the extent necessary to meet such objections).
(iii) At the time specified in the prior paragraph,
Millipore shall cause assets to be transferred from the
Retirement Plan to the Replacement Defined Benefit Plan in
accordance with the requirements of Section 414(l) of the Code
and the specifications described below, together with interest at
the annual rate of 7% for the period from the Closing Date to the
date of the actual transfer of assets.
(iv) The amount of assets transferred from the Retirement
Plan shall be equal to the Projected Benefit Obligation ("PBO"),
whether or not vested, as determined in accordance with the
Financial Accounting Standards Board Statement 87 ("FAS 87") and
which is attributable to the Transferred Employees who are
participants in the Retirement Plan as of the Closing Date. For
purposes of the preceding sentence, determination of the PBO
shall be calculated in accordance with the actuarial assumptions
set forth in the January 1, 1994 determination of pension expense
actuarial valuation report prepared by the Wyatt Company and an
annual interest rate of 7%. The above-described calculation of
the amount to be transferred from the Retirement Plan to the
Replacement Defined Benefit Plan shall be made by The Wyatt
Company and, at the Purchaser's option, reviewed by Towers
Perrin. In the event these two actuarial firms cannot agree on
an amount to be transferred hereunder, a third, independent,
actuarial firm acceptable to both Millipore and Purchaser will be
engaged and the decision of such firm shall be binding.
Millipore and Purchaser will equally share the cost incurred for
the third actuary.
(v) The accounts in the Participation Plan which are
attributable to Transferred Employees shall be transferred as
soon as practicable after the Closing Date in accordance with the
requirements of Section 414(1) of the Code and the specifications
described below. The value of such accounts shall include
earnings through the date the assets are transferred to the
Replacement Defined Contribution Plan. Millipore shall make a
contribution to the Participation Plan on behalf of each
Transferred Employee who was a participant in said plan as of the
Closing. The contribution shall be made to the Participation
Plan at the same time Millipore makes its contribution on behalf
of the other participants. The amount of the contribution shall
be determined by applying the rate of contribution declared for
the plan year by Millipore to the compensation the Transferred
Employee received for the period ending on the date such
Transferred Employee becomes an employee of the Purchaser. For
this purpose, the Social Security Wage Base used in the
computation of the contribution shall be proportionately reduced
to reflect the number of months of compensation considered. The
contribution shall be made assuming the Transferred Employee
satisfied all the requirements set forth in the plan to receive a
contribution. The contribution (along with any earnings
associated with such amount) shall be transferred to the
Replacement Defined Contribution Plan as soon as practicable
after the contributions have been made.
(vi) All assets transferred under this Section 4.15.10
shall be made in cash or, if requested by Purchaser, in kind (or,
where appropriate, participants' promissory notes). Pending
completion of the transfers contemplated by this Section 4.15.10,
any benefits that are payable to Transferred Employees under the
Replacement Plans shall be paid or continue to be paid out of the
Millipore Retirement Plans, and the amounts to be transferred to
the Replacement Plans shall be reduced by the amount of such
payments. Pending the completion of such transfers, Millipore
will cooperate with Purchaser with respect to plan
administration, disbursement of benefits and other pertinent
information.
(vii) The Replacement Plans shall be liable for benefits
with respect to Transferred Employees accrued under the Millipore
Retirement Plans prior to the Closing Date to the extent of the
assets transferred in accordance with this Section 4.15.10. The
Purchaser agrees that neither Millipore nor the Millipore
Retirement Plans shall have any further responsibility with
respect to the assets and liabilities so transferred, including
without limitation, obligations following such transfers with
respect to the accrued benefits and accounts of Transferred
Employees in the Millipore Retirement Plans.
(viii) Purchaser shall be free to modify, amend or
terminate the Replacement Plans after the Closing Date, provided,
however, in the event the Replacement Defined Benefit Plan is
terminated within 3 years of the Closing Date, Purchaser shall
remit to Millipore the amount of assets received by Purchaser
upon a termination of the Replacement Defined Benefit Plan, after
taxes actually paid on such amount, but in no event exceeding the
Excess Amount. For purposes of this Section 4.15.10(viii), the
Excess Amount is equal to the assets that were transferred to the
Replacement Defined Benefit Plan pursuant to Section 4.15.10(iv),
minus the assets which would be required to be paid as of the
termination date based on the benefits which were accrued as of
the Closing Date, reduced further by the amount of taxes actually
paid that are attributable to the Excess Amount.
4.15.11. Controlled Group Liability. Neither
Millipore nor WIL incurred or has any reason to expect that it
will incur, any Liability to the PBGC (other than PBGC premium
payments) or otherwise under Title IV of ERISA (including any
withdrawal Liability) or under the Code with respect to any
employee pension benefit plan that Millipore or any member of its
Controlled Group (within the meaning of Code Section 414(b) and
(c) maintains or ever has maintained or to which any of them
contributes, ever has contributed, or ever has been required to
contribute.
4.15.12. Foreign Plans. Except as set forth on
Schedule 4.15.12, with respect to each Foreign Plan:
(i) Each such plan has been administered in all
material respects in accordance with its terms and all
applicable laws;
(ii) All contributions, premiums, accruals,
payments or reimbursements required by applicable law
or the terms of the applicable plan for all periods
ending prior to or as of the Closing Date have been
made or will be accrued; and
(iii) The current value of the assets and
reserves set aside for each such plan exceed the
liabilities under such plans as of the Closing Date.
4.15.13. Replacement Foreign Plans. To the extent
permitted by local law, as of the Closing Date, the benefit plans
and programs maintained by each Foreign Affiliate shall be
duplicated and continued by Purchaser on behalf of the Foreign
Transferred Employees who participated in such plans immediately
prior to the Closing Date. The Foreign Transferred Employees
shall be given credit in such plans for all service with and
compensation from the Foreign Affiliate through the Closing Date
to the extent taken into account under the foreign plans. As a
general rule, the allocation of assets and liabilities between
Millipore and Purchaser under each plan will be consistent with
the allocation of employees to each party. Unless otherwise
required by local law, the following rules shall apply with
respect to each plan which is a pension or retirement-type plan,
or termination indemnity plan.
(i) If the plan is funded, assets shall be
transferred to Purchaser, or to a plan established by
Purchaser, equal to Purchaser's proportionate share of
the PBO associated with the liabilities assumed under
such plan.
(ii) If the plan is unfunded, a reserve shall be
accrued on the Closing Balance Sheet equal to the
greater of the obligations accrued as of the Closing
Date under such plan and the proportionate share of the
reserve recorded by the Foreign Affiliate with respect
to such plan. The determination of the obligation
accrued will be made on the basis that the person had
terminated on the Closing Date and was eligible for
such benefit under the plan.
(iii) If the plan is funded by insurance, the
insurance contract shall be equitably separated and the
portion of the contract attributable to the employees
assumed by Purchaser will be assumed and continued by
Purchaser.
Some of the foreign benefit plans are financed by
Millipore under a multinational pooling arrangement.
Purchaser shall be permitted to remain under such
pooling arrangement with Millipore for at least the
remainder of the 1994 calendar year and shall share in
any dividend issued under the pooling arrangement
(based on the period of Purchaser's joint
participation).
4.16. Labor. Neither Millipore nor WIL has or has had any
collective bargaining agreements with employees, or except as set
forth on Schedule 4.16 hereof has any employment contracts or any
other binding agreements relating to the employment of any of the
employees of the Business. There is not pending or threatened,
and there has not occurred, any grievance actions, strikes,
unfair labor practices claims, employment discrimination claims,
labor disputes, slowdowns, walkouts or work stoppages involving
employees of the Waters Division, and, to Millipore's and WIL's
knowledge, no union representation question exists and no union
organizing activities are taking place or have taken place with
respect to such employees. Except as disclosed to Purchaser in
writing prior to the date hereof, neither Millipore nor WIL has
received any notice that any employee of the Waters Division
intends to terminate his employment for any reason related to any
transaction contemplated by the Documents, and no such
termination has occurred.
4.17. Insurance. Millipore and WIL have maintained and now
maintain, as the case may be, (i) insurance on the Business
covering property damage and loss of income by fire and other
casualty to the limits and with the deductibles shown on
Schedule 4.17, and (ii) insurance protection against such
liabilities, claims, and risks, including product liability, and
in such amounts, as is shown on said Schedule. All such policies
shall be maintained in full force and effect until the Closing
Date. Copies of all such policies, and Millipore's and WIL's
files with respect to the Waters Division's claims experience
under such policies, have been made available to the Purchaser
for its inspection.
4.18. Contracts. Attached hereto as Schedule 4.18 is a
complete and accurate list as of the date hereof of the following
agreements, contracts and commitments relating to the Business:
(i) mortgages, indentures, security agreements, guarantees and
other agreements and instruments relating to the extension of
credit or borrowing of money; (ii) consulting, employment, non-
competition, non-disclosure and non-disclosure agreements; (iii)
bonus, profit sharing, compensation, pension, retirement,
deferred compensation, stock-based incentive, insurance, health,
welfare and other similar plans, agreements, trusts, funds or
arrangements for the benefit of employees; (iv) sales agency,
manufacturer's representative, distributorship or consignment
agreements; (v) agreements, orders or commitments for the
purchase of raw materials, supplies or finished goods in excess
of $300,000 for any one agreement, order or commitment; (vi)
agreements, orders or commitments for the sale of products of the
Business other than in the ordinary course of business; (vii)
agreements or commitments for capital expenditures in excess of
$300,000 for any single project; (viii) brokerage or finder's
agreements; (ix) agreements or instruments relating to the
extension of credit not in the ordinary course of business in
accordance with past custom and practice; and (x) other
agreements, contracts or commitments which are material to the
Business or which individually involve total payments or receipts
of more than $500,000, or assets, rights or liabilities otherwise
valued at more than $500,000. Millipore and WIL have made
available to the Purchaser complete and accurate copies of all
such written agreements, contracts and commitments (together with
all amendments thereto) and Schedule 4.18 sets forth complete and
accurate descriptions of all oral agreements so listed. All such
agreements, contracts and commitments are valid and binding and
are enforceable by Millipore or WIL in accordance with their
respective terms. There has not occurred any default by
Millipore or WIL to the best knowledge of Millipore and WIL, by
any other party under any such agreements, contract or
commitment, nor any event which, with the giving of notice and/or
passage of time, would constitute a default, and no party has
waived any rights with respect thereto.
4.19. Employees. Schedule 4.19 hereto contains an
accurate and complete list of all employees employed in the
Business whose present compensation is in excess of $100,000 per
year, setting forth the rate, character and amount of such
compensation paid to each such employee during the twelve months
ended December 31, 1993, and the rate, character and amount
currently payable.
4.20. Litigation. Except as referred to in Schedule 4.20
hereto, there currently is no action, suit, claim, arbitration,
governmental investigation, or other legal or administrative
proceeding, investigations, actions or orders pending, or to the
knowledge of Millipore or WIL threatened against or involving or
affecting the Business before any federal, state, municipal, or
foreign court, governmental agency or instrumentality or
arbitration tribunal, nor any request for response or remedial
action with respect to any environmental, hazardous or toxic
waste or substance, waste water treatment or discharge, or
similar matter, nor has there been during the past three years
any of the foregoing that has had a Material Adverse Effect.
Except as stated in Schedule 4.20 hereto, neither Millipore nor
WIL is in default with respect to any request, order, writ,
judgment, injunction or decree of any federal, state, municipal
or foreign court, governmental agency or instrumentality or
arbitration tribunal relating to the Business, nor is Millipore,
Millipore France, WIL or any Foreign Affiliate subject to any of
the foregoing that has or can be expected to have a material
effect on the Business.
4.21. Products Liability. Except as set forth in
Schedule 4.21 hereto, neither Millipore nor WIL has knowledge of
any state of facts or occurrence of any event that would form the
basis for any claims for liability on account of negligence or
express or implied warranty or strict liability in law, in
connection with the manufacture or sale of goods, or providing of
services by the Waters Division or the Business.
4.22. Suppliers and Customers. Set forth on Schedule 4.22
is a list of all suppliers and customers of the Waters Division
that accounted for over 5% each of the total sales and purchases,
respectively, of the Waters Division during the twelve-month
period ended December 31, 1993, together with the amount paid to
each such supplier or sold to each such customer.
Except as set forth in Schedule 4.22, neither Millipore nor
WIL believes, nor has either of them received any notice which
should lead it to believe, that there is a substantial
probability that any of the suppliers or customers listed on
Schedule 4.22 will terminate or materially reduce its business
with Millipore or WIL.
4.23. Prohibited Foreign Trade Practices Act; Sensitive
Payments. To the best of their knowledge, Millipore and WIL are
in compliance with the Prohibited Foreign Trade Practices Act
with respect to the Business, and have had no "sensitive"
receipts or disbursements, which are defined to mean the
following types of transactions: (i) illegal receipts from or
payments to governmental officials or employees; (ii) commercial
bribes or kickbacks; (iii) amounts disbursed or received with an
understanding that rebates or refunds will be made in
contravention of the laws of any nation or other jurisdiction;
(iv) illegal political contributions; or (v) payments of
commitments, regardless of form, made with the knowledge or under
circumstances that would indicate that all or part thereof is to
be paid ultimately to or for the benefit of governmental
officials or employees or as an influence payment or kickback.
4.24. Burdensome Agreements. To the best knowledge of
Millipore and WIL, no agreement or instrument to which Millipore
or WIL is a party with respect to the Business or by which it may
be bound or to which any of their respective properties or assets
may be subject contains any unusual or burdensome provisions
which can reasonably be expected to have a Material Adverse
Effect, or impair the ownership or operation of, their respective
properties or assets or the conduct of the Business.
4.25. Disclosure. No representation or warranty by
Millipore, Millipore France or MIHL hereunder and no list,
certificate, Exhibit or Schedule furnished or to be furnished
pursuant hereto or in connection with the transactions
contemplated hereby contains or will contain any untrue statement
of a material fact, or omits or will omit to state a material
fact necessary to make the statements contained therein not
misleading. To the best knowledge of Millipore, there is no
material fact which has not been disclosed to Purchaser which has
or could be expected to have a Material Adverse Effect on the
Business or the Purchased Assets.
4.26. Closing Date. All of the representations and
warranties of Millipore and WIL contained in this Section 4 and
elsewhere in this Agreement and all information delivered in any
certificate delivered by Millipore and WIL to Purchaser are true
and correct in all material respects on the date of this
Agreement and will be true and correct in all material respects
on the Closing Date.
5. Pre-Acquisition Notifications. The parties hereto recognize
that the transaction contemplated hereby may be subject to
(i) the premerger notification requirements of the Hart-Scott-
Rodino Antitrust Improvements Act of 1976 (the "HSR Act") and/or
(ii) such laws of foreign application as may govern the
transactions contemplated hereby, and, in conjunction therewith,
each hereby covenants and agrees to cooperate and use their best
efforts to prepare and make all necessary filings and
notifications under the HSR Act and/or such foreign laws as may
be applicable to the transactions contemplated hereby, and to
obtain and maintain in effect all waivers, consents, approvals
and clearances thereunder (including the request for early
termination of the waiting period under the HSR Act) to permit
consummation of the transactions contemplated hereby as soon as
possible.
6. Representations and Warranties of Purchaser.
The Purchaser represents and warrants to and agrees with
Millipore that:
6.1. Corporate Existence. The Purchaser is a corporation
duly organized and validly existing and in good standing under
the laws of the state of its organization and has the corporate
power and authority to purchase the Waters France Stock and the
WIL Stock, and operate the Business as contemplated by this
Agreement. The Purchaser has heretofore delivered to Millipore
copies of the Purchaser's charter documents and by-laws
(certified by the appropriate corporate officer) as amended and
in effect on the date of this Agreement.
6.2. Corporate Authority. The Purchaser has all requisite
corporate power and authority to execute, deliver and perform
this Agreement and all other Documents and has taken all
necessary action to authorize the execution, delivery and
performance of this Agreement and the other Documents and to
consummate the transactions contemplated by this Agreement and
thereof in accordance with the provisions hereof and thereof.
This Agreement has been duly executed and delivered, and each
other Document or instrument executed or to be executed by the
Purchaser pursuant hereto upon execution and delivery will have
been duly executed and delivered, and this Agreement constitutes
and each other Document and instrument will constitute, when
executed, the legal, valid and binding obligation of the
Purchaser, enforceable in accordance with its terms subject to
the Remedies Exception.
6.3. No Conflict. The execution and delivery of this
Agreement and the other Documents and the consummation of the
transactions contemplated hereby,
(a) will not conflict with, or result in the breach of
(1) any relevant statute, law, ordinance, rule or regulation
applicable to the Purchaser, or (2) the terms, conditions or
provisions of the charter or the by-laws of the Purchaser or
(3) any material mortgage, lease, agreement (including loan
agreements) or other instrument or judgment, order, or
decree to which the Purchaser is a party or by which it is
bound;
(b) will not constitute, with or without the giving of
notice or the passage of time, a default under any of the
foregoing, and
(c) will not accelerate the maturity of any material
obligation of the Purchaser under any of the foregoing.
6.4. No Consents. Except as shown on Schedule 4.10 or
provided for in Section 5, the Purchaser knows of no consent,
approval, order or authorization of, or registration, declaration
or filing with, any governmental authority or any other person
that is required in connection with the execution and delivery of
this Agreement or any of the Documents by the Purchaser or the
consummation of the transactions contemplated hereby.
7. Covenants of Millipore and WIL. For purposes of this
Section 7, except as the context otherwise indicates, references
to "Millipore" include Millipore and its subsidiaries, including
MIHL and the Foreign Affiliates, and references to "WIL" include
WIL and its Subsidiaries.
Millipore and WIL covenant and agree with the Purchaser
that:
7.1. Continuance of Business. From the date hereof and
through the Closing Date, unless otherwise required by the terms
of this Agreement or agreed by Purchaser, Millipore and WIL will:
(a) carry on the Business (including with respect to
its cash management practices, the collection of
receivables, inventory control and payment of payables) in,
and only in, the usual, regular and ordinary course in
substantially the same manner as heretofore conducted and
exercise reasonable business efforts to preserve intact its
present business organization, to keep available the
services of the present employees (including, without
limitation, all of the individuals identified on Schedule 3
to the Transition Services Agreement) of the Business, and
to preserve the good will and relationships of the Business
with employees, customers, suppliers and others having
business dealings with it to the end that the Business shall
be conducted substantially on the same basis at the Closing
Date as at the date hereof;
(b) maintain all the material structures, equipment
and other tangible real and personal property of the
Business (including the Purchased Assets) in good repair
order and condition, except for ordinary wear and tear;
(c) keep in full force and effect insurance equivalent
in amount and scope of coverage to insurance now carried
with respect to the Business and to the Purchased Assets;
(d) perform and comply with in all material respects
all of its obligations under agreements, contracts and
instruments relating to or affecting properties and assets
of the Business;
(e) maintain books of account and records of the
Business in accordance with Millipore GAAP;
(f) comply in all material respects with all statutes,
laws, ordinances, rules and regulations applicable to the
Waters Division, the Purchased Assets and to the conduct of
the Business;
(g) not, without the written approval of the Purchaser
(which approval shall not be unreasonably withheld), enter
into or assume any agreement, contract or commitment of the
character described in, and required to be listed in clauses
Schedule 4.18;
(h) not, without the written approval of the Purchaser
(which approval shall not be unreasonably withheld), take or
permit to be taken any action which is represented and
warranted in clauses (b), (c), (e) through (h), (j), (k),
(l), (n) and (p) of Section 4.14 not to have been taken
since December 31, 1993;
(i) maintain in full force and effect the existence of
all Waters Intellectual Property;
(j) not, without the written approval of the Purchaser
(which approval shall not be unreasonably withheld), make
any capital expenditure or commitment for additions to
property, plant or equipment in respect of the Business,
except for expenditures in the ordinary course of business
no one of which exceeds $300,000 and which in the aggregate
do not exceed $1,250,000;
(k) promptly advise the Purchaser in writing of any
material adverse change in the Business, condition
(financial or otherwise), operations, assets, liabilities or
prospects of the Business.
7.2. Access to Information. From the date hereof until the
Closing Date, Millipore shall, and shall cause WIL to, give the
Purchaser and its representatives full access during normal
business hours to the properties, personnel books, records,
contracts, documents and commitments of the Business and will
furnish all such information and documents relating to their
properties and business as the Purchaser may reasonably request,
provided that the furnishing of such documents and information
may be subject to such restrictions as Millipore may reasonably
impose regarding the release of otherwise nonpublic information
and to protect proprietary information of Millipore and WIL in
respect of the Business. Such access shall include, without
limitation, the right to observe and analyze inventory and
accounts receivable. In the event this Agreement is terminated,
the Purchaser will keep confidential and not use any information
(unless readily ascertainable from public information or
otherwise required by law to be disclosed) obtained from
Millipore and WIL in connection with the transactions
contemplated hereby and will promptly return to Millipore and
WIL, as the case may be, all documents and other written
materials so obtained.
7.3. Conditions to Closing by the Parties; Possible
Deferral of Closing with Respect to Certain Foreign
Jurisdictions. The obligations of Millipore, Millipore France,
MIHL and the Purchaser to consummate the transactions
contemplated hereby are, at the option of each party hereto,
subject to the fulfillment of the condition that on the Closing
Date (i) there shall not be any injunction, writ, preliminary
restraining order or order of any nature issued by any court or
governmental agency directing that the transactions contemplated
by this Agreement not be consummated, (ii) there shall not be any
pending or threatened action, proceeding or investigation before
any such court or governmental agency seeking any such
injunction, writ, preliminary restraining order or other order;
(iii) the waiting period referred to in Section 5 (or any
extension thereof) shall have expired or have been terminated;
and (iv) all necessary domestic and foreign governmental
approvals, consents and other actions with respect to the
consummation of the transactions contemplated hereby shall have
been obtained. The parties agree to use their best efforts to
obtain the approvals, consents and other actions referred to in
clause (iv) of the preceding sentence so as to permit the
effective consummation of all transactions contemplated hereby on
the Closing Date; provided, that in the event, and only in such
event, that such approvals, consents and actions cannot be
obtained with respect to any of the Foreign Affiliates, thereby
rendering the transfer of any portion of the Business relating to
such Foreign Affiliates contemplated hereby impossible on the
Closing Date, such transfer shall be deferred until all such
approvals, consents and other actions have been obtained, and in
such event the parties will use their best efforts to cause all
of the foregoing to be obtained as soon as practicable after the
Closing Date; provided, further, that no such deferrals shall be
permitted if either (i) the portion of the assets and the
Business prevented from being transferred by Sellers pursuant to
clause (iv) of the preceding sentence consist of the assets and
the Business of any of the following Foreign Affiliates:
Millipore, S.A. (or Waters France), Millipore GmbH, Millipore
S.p.A., Millipore Iberica S.A., Millipore (UK) or Nihon Millipore
(or Nihon Waters), or (ii) the aggregate amount as of the Closing
Date of net assets or net sales (annualized) attributable to any
single Foreign Affiliate or group of Foreign Affiliates the
transfer of the assets of which may be deferred in accordance
with this Section 7.3 exceeds 5% of net assets or net sales of
the Waters Division as reflected on the Waters Division Financial
Statements as at and for the period ending December 31, 1993.
Millipore agrees that in the event that a transfer is
deferred as contemplated by this Section 7.3, it shall operate
that portion of the Business not transferred at the Closing in
the manner reasonably requested by the Purchaser and for the
benefit of Purchaser and shall, if requested by Purchaser,
execute such documents and instruments as Purchaser may
reasonably request to evidence Purchaser's rights to the economic
benefits accruing from such assets (including, without
limitation, the cash flow benefits of any non-cash charges
associated with such assets) and portion of the Business until
such approvals, consents and other actions referred to in clause
(iv) of the first sentence of this Section 7.3 have been
obtained.
In the event of a closing of a transfer of a Foreign
Affiliate subsequent to the Closing Date, all of the
representations and warranties of Millipore and WIL (if
applicable) shall be true and correct in all material respects as
of such date and all conditions set forth in Section 7.4 shall
have been satisfied or waived.
7.4. Conditions to Closing by the Purchaser. The
obligations of the Purchaser to consummate the transactions
contemplated hereby are, at the option of the Purchaser, subject
to the fulfillment of each of the conditions that, on or before
the Closing Date:
7.4.1. Representations and Warranties True;
Obligations Performed.
(a) The representations and warranties of Millipore
and MIHL contained in Section 4 hereof shall be true and
correct in all material respects at and as of the Closing
Date, with the same force and effect as if made at and as of
the Closing Date;
(b) Millipore and MIHL shall have performed or
complied in all material respects with all of their
covenants contained in Section 7 hereof to the extent such
performance or compliance is required prior to and on the
Closing Date;
(c) Millipore, Millipore France and MIHL shall have
delivered to the Purchaser certificates, dated the Closing
Date and signed by the President and/or Vice President of
Millipore, Millipore France and MIHL, respectively, to the
foregoing effects; and
(d) Millipore shall have executed and delivered the
Transition Services Agreement.
(e) The Board of Directors of Millipore shall have
approved the accelerated vesting of options granted to
employees of Millipore that are employees of the Waters
Division and will become employees of Purchaser as of the
Closing Date.
(f) Millipore shall have fulfilled such of its
obligations as may have become due under the Executive
Incentive (Retention) Agreements between Millipore and
certain key executives of the Waters Division.
7.4.2. Opinion of Millipore's and MIHL's Counsel. The
Purchaser shall have received from Messrs. Ropes & Gray, counsel
to Millipore and MIHL, an opinion dated the Closing Date, in form
and substance reasonably satisfactory to counsel for the
Purchaser to the effect that:
(a) Each of Millipore, Millipore France, MIHL, WIL and
its Subsidiaries is a corporation duly organized and validly
existing under the laws of the jurisdiction of its
incorporation. Each of Millipore, Millipore France and MIHL
has the corporate power to execute, deliver and perform the
Documents. Each of Waters France, WIL and its Subsidiaries
has the corporate power to own the Business and to operate
and carry on the Business as now conducted;
(b) Each of Waters France, WIL and its Subsidiaries is
duly qualified and in good standing as a foreign corporation
in each jurisdiction indicated in Schedules 4.1 and 4.3
hereto. Each of Waters France, WIL and its Subsidiaries is
duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which it owns or
leases real property; and
(c) the execution and delivery of the Documents, and
the consummation of the transactions contemplated thereby,
have been duly and validly authorized by all necessary
corporate action on the part of Millipore, Millipore France
and MIHL;
(d) each Document has been duly executed and delivered
by Millipore or MIHL or both, or Millipore France, as
appropriate, and constitutes the legal, valid and binding
obligation of such party or parties, as the case may be,
enforceable in accordance with its terms except as
enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, or other laws affecting creditors'
rights generally and the enforceability of the obligations
being subject to the general principles of equity; and
(e) the execution and delivery of the Documents, the
consummation of the transactions contemplated hereby and
thereby, and the compliance with the terms and conditions
hereof and thereof (i) will not conflict with, or result in
a breach of (1) any relevant statute, law, ordinance, rule,
regulation, order, injunction or decree applicable to either
of Millipore or WIL or the Business, or (2) the terms,
conditions or provisions of the Articles of Organization,
Certificate of Incorporation or the By-laws of Millipore or
the charter documents or by-laws of Waters France, MIHL, WIL
or any of its Subsidiaries or (3) any material mortgage,
lease, agreement, or other instrument or any judgment, order
or decree to which Millipore or WIL is a party or by which
it or its properties are bound or which otherwise relates to
the Business, (ii) will not result in the termination of, or
require any consent under (other than consents listed in
Schedule 4.10 hereof), any of the items listed in clause
(i)(3) above, (iii) will not constitute, with or without the
giving of notice or the passage of time or both, a default
under any of the foregoing, and (iv) will not accelerate or
constitute, with or without the giving of notice or the
passage of time or both, grounds for acceleration of any
obligation under any of the items listed in clause (3)
above, or (v) modify or result in the creation of any lien,
security interest, charge or encumbrance upon any of the
assets or properties necessary for the conduct of the
Business;
(f) The Documents, including, without limitation, the
instruments of transfer described in Section 3.1.3., are
sufficient to vest in Purchaser the right, title and
interest of Sellers in and to the Purchased Assets, the WIL
Stock and the Waters France Stock (including, without
limitation, the Waters Intellectual Property);
and an opinion of Geoffrey Nunes, Esq., Senior Vice President and
General Counsel of Millipore, to the effect that:
(a) To the best of his knowledge, each of Millipore,
Millipore France, MIHL, WIL and each of its Subsidiaries
have complied in all material respects with all applicable
United States federal, state and local and foreign laws,
regulations, ordinances, licenses, permits and
authorizations affecting the Business; and
(b) Except as referred to in Schedule 4.20 hereto,
there currently is, and has been during the past three
years, no action, suit, claim, arbitration, governmental
investigation, or other legal or administrative proceeding
pending, or to the best of his knowledge, threatened against
or involving or affecting the Business before any federal,
state, municipal, or foreign court, governmental agency or
instrumentality or arbitration tribunal, nor any request for
response or remedial action with respect to any
environmental, hazardous or toxic waste or substance, waste
water discharge, or similar matter. To the best of his
knowledge, except as stated in Schedule 4.20 hereto, neither
Millipore, WIL nor Millipore France is in default with
respect to any request, order, writ, judgment, injunction or
decree of any federal, state, municipal or foreign court,
governmental agency or instrumentality or arbitration
tribunal relating to the Business, nor is subject to any of
the foregoing that has or can be expected to have a material
affect on the Business.
In rendering their opinions, counsel for Millipore and MIHL
shall be entitled to rely, as to matters governed by the laws of
jurisdictions other than Massachusetts, on opinions of counsel
admitted to practice in such jurisdictions, and as to matters of
fact on certificates of officers of Millipore and public
officials.
7.4.3. Certain Legal Matters. All actions,
proceedings, instruments and documents required to carry out this
Agreement, or incidental thereto, and all other related legal
matters, shall be reasonably satisfactory to counsel for
Purchaser and such counsel shall have received all documents,
instruments or copies thereof, certified if requested, as may be
reasonably requested;
7.4.4. Other Instruments and Actions. Millipore,
Millipore France and MIHL, shall have executed and delivered to
the Purchaser such other instruments and taken such other action
as the Purchaser may reasonably have requested with respect to
the transactions contemplated by this Agreement.
7.4.5. Consents. Millipore, Millipore France and MIHL
shall have obtained all other necessary consents and approvals of
third parties to, and all material permits, concessions, grants,
certificates of occupancy, franchises, licenses, registrations
and other governmental authorizations and approvals necessary for
the consummation of the transactions contemplated hereby, except
such as may be required to be obtained by Purchaser including
those listed in Schedule 4.10 or required by Section 5 and such
as may be deferred pursuant to Section 7.3.
7.4.6. Absence of Adverse Changes. There shall have
occurred no material adverse change in the Business, condition
(financial or otherwise), operations, assets properties,
liabilities or prospects of the Waters Division, except for any
such change of which Millipore has notified the Purchaser
pursuant to Section 7.1, and with respect to which the Purchaser
has waived in writing the application of this condition.
7.4.7. Waters France Transfer; Other Proceedings. The
contribution and transfer of all assets and possessions of
Millipore France to Waters France and the establishment of the
branches of Nihon Waters Limited and Waters Asia Limited, as
indicated on Annex B, shall have been effected to the reasonable
satisfaction of Purchaser.
7.4.8. Financing. Purchaser will have obtained
financing on terms and conditions at least as favorable to
Purchaser as the terms and conditions set forth in the letters
attached as Exhibit E hereto in an amount sufficient to
consummate the transactions contemplated by this Agreement and to
provide for adequate working capital for the operation of the
Business.
7.5. Conditions to Closing by Millipore. The obligations
of Millipore to consummate the transactions contemplated hereby
are, at the option of Millipore, subject to the fulfillment of
each of the conditions that, on or before the Closing date:
7.5.1. Representations and Warranties True;
Obligations Performed.
(a) The representations and warranties of the
Purchaser contained in Section 6 hereof shall be true and
correct at and as of the Closing Date, except for changes
contemplated by this Agreement or specifically consented to
or approved by Millipore and MIHL, with the same force and
effect as if made at and as of the Closing Date; and
(b) The Purchaser shall have delivered to Millipore
and MIHL certificates, dated the Closing Date and signed by
the President or a Vice President and the Secretary of the
Purchaser, to the foregoing effects.
7.5.2. Opinion of Counsel for the Purchaser.
Millipore and MIHL shall have received from counsel for the
Purchaser, an opinion dated the Closing Date, in form and
substance reasonably satisfactory to counsel for Millipore and
MIHL, to the effect that:
(a) The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of its
state of organization, has the corporate power to execute,
deliver and perform the Documents, and has the corporate
power and authority to own the Business as contemplated by
this Agreement and to operate and carry on the Business as
now conducted;
(b) the execution and delivery of the Documents, and
the consummation of the transactions contemplated thereby,
have been duly and validly authorized by all necessary
corporate action on the part of the Purchaser;
(c) each of the Documents has been duly executed and
delivered by the Purchaser and constitutes its valid and
legally binding obligation, enforceable in accordance with
its terms except as enforcement thereof may be limited by
bankruptcy, moratorium, insolvency or other laws affecting
creditors' rights generally and the enforceability of the
obligations of such Purchaser being subject to the general
principles of equity.
7.5.3. Certain Legal Matters. All actions,
proceedings, instruments and documents required to carry out this
Agreement, or incidental thereto, and all other related legal
matters, shall be reasonably satisfactory to counsel for
Millipore and MIHL and such counsel shall have received all
documents, instruments or copies thereof, certified if requested,
as may be reasonably requested.
7.5.4. Compliance. The Purchaser shall have performed
and complied with all agreements, covenants and conditions
required by this Agreement to have been performed or complied
with prior to or at the Closing Date and Millipore and MIHL shall
have received certificates signed by the President or a Vice
President of the Purchaser to such effect.
7.5.5. Financing. Any securities offered and sold by
Purchaser in connection with the financing of the transactions
contemplated hereby shall have been issued in compliance with all
applicable laws, including without limitation the Securities Act
of 1933, as amended, and the rules and regulations of the
Securities Exchange Commission thereunder and any applicable
state securities or "blue sky" laws.
7.5.6. ConSep and TOF License Agreements. Purchaser
shall have executed and delivered to Millipore or its designee(s)
the ConSep License and the TOF License.
8. Post Closing Covenants. For the purposes of this Section 8,
except as the context otherwise indicates, references to
"Millipore" include Millipore and its subsidiaries, including
MIHL and the Foreign Affiliates and Millipore France.
8.1. Tax Matters. It is the intention of Purchaser,
Millipore and MIHL that Purchaser receive a cost basis with
respect to (i) the Purchased Assets, (ii) all assets directly or
indirectly owned by WIL, and (iii) all assets directly or
indirectly owned by Waters France. Further, it is the intention
of Purchaser, Millipore, and MIHL that Millipore be responsible
for and pay any and all Taxes, including any and all Taxes that
result from the Elections (as defined in Section 8.1.5), assessed
against WIL, Waters France, the Waters Division and the Business
for all periods (or portions thereof) on or prior to Closing
Date. For this purpose, any Taxes other than those based on
income, gross receipts, sales or similar measures, shall be
allocated pro rata on the basis of the number of days occurring
before and after the Closing Date.
8.1.1. Returns and Payments. (i) Millipore and, if
appropriate, MIHL or the relevant Seller shall prepare, file, and
pay all Taxes with respect to all Tax returns of WIL and Waters
France with respect to all taxable periods ending on or before
the Closing Date (the "Millipore Returns"); (ii) Purchaser shall
prepare and file all Tax returns of WIL and Waters France with
respect to taxable periods beginning before and ending after the
Closing Date (the "Purchaser Returns"). At least 15 days prior
to the filing of any such return, Purchaser shall submit a copy
of such return to Millipore. Within the later of five days after
Purchaser's request therefor or five days prior to the date on
which the Tax with respect to any Purchaser Return is required to
be paid, Millipore will pay to Purchaser the portion of such Tax
relating to the period ending on the Closing Date; (iii) The
parties to this Agreement and their respective affiliates agree
to cooperate with one another as necessary in the preparation of
the Millipore Returns and the Purchaser Returns.
8.1.2. Indemnification. Millipore and, if
appropriate, MIHL or the relevant Seller will jointly and
severally indemnify the Purchaser, WIL, Waters France and their
affiliates, successors and assigns in respect of, and save and
hold each of them harmless against any and all liability for (i)
Taxes assessed against WIL or Waters France with respect to any
taxable periods ending on or prior to the Closing Date, (ii)
Taxes assessed against WIL or Waters France with respect to any
taxable period beginning before and ending after the Closing Date
to the extent such Taxes relate to the portion of such period
ending on the Closing Date, (iii) Taxes resulting from the
Elections (as defined in Section 8.1.5), (iv) Taxes assessed
against any of them with respect to activities or operations of
the Waters Division and the Business on or prior to the Closing,
and (v) Taxes of Millipore or any of its affiliates assessed
against any of them by reason of any of them being severally
liable for such Tax pursuant to treasury regulations 1.1502-6 or
any analogous provision of state, local or foreign law. In the
case of any such liability attributable to the timing for an item
of income, deduction, credit, or other similar item (a "Timing
Item"), such indemnity shall be net of any Tax benefit obtained
by the indemnified party with respect to such Timing Item.
8.1.3. Tax Contests.
(i) Purchaser shall promptly and in writing notify
Millipore upon receipt by Purchaser or any of its affiliates of
written notice of any federal, state, local or foreign Tax audits
or Tax assessments that relate to Taxes for which any Seller is
liable under Section 8 (a "Tax Claim").
(ii) Upon Millipore's written acknowledgment to
Purchaser that Millipore and, if appropriate, MIHL or the
relevant Foreign Affiliate would be liable for the Tax asserted
in a Tax Claim if such Tax were successfully imposed, Millipore
shall conduct and control (at its own expense) the defense of
such Tax Claim (a "Tax Contest"). Purchaser shall have the
right, at its own expense, to participate in such Tax Contest.
If Purchaser does not so participate, Millipore shall keep
Purchaser informed as to the conduct and progress of the Tax
Contest.
(iii) If Millipore chooses not to conduct and control
a Tax Contest with respect to any Tax asserted in a Tax Claim for
which Millipore and, if appropriate, MIHL or the relevant Foreign
Affiliate would be liable if such Tax were successfully imposed,
Purchaser shall have the right to conduct and control such Tax
Contest. Millipore shall be liable for all reasonable costs
(including attorneys fees) incurred by Purchaser with respect to
such Tax Contest. Purchaser shall keep Millipore fully informed
as to the conduct and progress of the Tax Contest. Purchaser
shall not settle the Tax Contest without Millipore's prior
written consent, which shall not be unreasonably withheld.
(iv) Notwithstanding anything to the contrary in
clauses (ii) and (iii) above, in the event that any taxing
authority commences a Tax audit or makes a Tax assessment
involving both (a) Taxes for which any Seller is liable under
Section 8.1.2 (or a possible adjustment which would result in a
Tax detriment to Millipore) and (b) Taxes for which Purchaser or
its affiliates would be liable (or a possible adjustment which
would result in a Tax detriment to Purchaser or its affiliates),
Millipore and Purchaser shall (each at their own cost) jointly
conduct and control the resulting Tax Contest and neither shall
have the right to settle such Tax Contest without the consent of
the other.
8.1.4. Cooperation. After the Closing Date, the
parties to this Agreement and their respective affiliates shall
make available to one another, as reasonably requested, all
information, records or documents relating to Taxes or potential
Tax liabilities of WIL, Waters France, the Waters Division and
the Business for all periods prior to and including the Closing
Date and shall preserve all such information, records and
documents until the expiration of any applicable statutes of
limitations or extensions thereof.
8.1.5. Elections.
(i) With respect to WIL and its Subsidiaries and
Waters France (a) Purchaser and Millipore (and/or Millipore's
relevant Foreign Affiliate) shall jointly make an election under
Section 338(h)(10) of the Internal Revenue Code and the
regulations promulgated thereunder, and any analogous provision
of state, local or foreign law and (b) with respect to any state,
local, or foreign jurisdiction that does not recognize an
election under (a), Purchaser shall make an election under
Section 338(g) of the Internal Revenue Code and the regulations
promulgated thereunder, and any applicable analogous provision of
state, local or foreign law (the Elections in (a) and (b)
immediately above are referred to collectively as the
"Elections").
(ii) Except as otherwise dictated by Section 8.1.1,
Purchaser shall be responsible for the preparation and timely
filing of all returns, documents, statements and other forms to
be filed with any federal, state, local or foreign taxing
authority in connection with the Elections. Millipore, MIHL and
the Foreign Affiliates shall cooperate with Purchaser to enable
Purchaser to prepare and file the Elections and shall execute and
deliver to Purchaser such documents and forms as are required by
the Internal Revenue Code or the regulations promulgated
thereunder, or any analogous provision of state, local or foreign
law, to properly complete the Elections. Purchaser shall be
solely responsible for any requirements related to qualification
for the Elections.
(iii) The portion of the Purchase Price allocated to
WIL and Waters France, the liabilities of WIL and its
Subsidiaries and Waters France, and other relevant items shall be
allocated between and among the assets held directly or
indirectly by WIL and its Subsidiaries and Waters France in
accordance with the rules of Section 338 of the Internal Revenue
Code and the regulations promulgated thereunder. Purchaser
shall, on or prior to the ninetieth (90th) day following the
Closing Date, prepare and deliver to Millipore a schedule setting
forth such allocations which schedule shall be reasonably
satisfactory to Millipore. The allocations as agreed to in the
previous sentence shall be used by all parties to this agreement
(and their affiliates) for financial, accounting and tax
reporting purposes.
8.1.6. Tax Sharing. Other than pursuant to this
Agreement, as of the Closing Date, WIL, Waters France, the Waters
Division and the Business shall have no further rights or
obligations under or arising out of any tax sharing agreements
amongst any of them and Millipore, MIHL, the Foreign Affiliates
and/or any of their affiliates.
8.2. Non-Assignable Assets. Notwithstanding anything
contained in this Agreement to the contrary, this Agreement shall
not constitute an agreement or an attempted agreement to
transfer, sublease or assign any contract, lease, agreement or
commitment, or any claim, right or benefit arising thereunder or
resulting therefrom if any such attempted transfer, sublease or
assignment without the consent of any other party thereto would
constitute a breach thereof or would in any way adversely affect
the rights of Purchaser thereunder. If requested by Purchaser,
each Seller shall, after the Closing Date, use its best efforts
to obtain the consent of any party or parties to any such
contracts or other agreements to the transfer, sublease or
assignment thereof by each Seller to Purchaser or its designee(s)
hereunder in all cases in which such consent is required.
Notwithstanding any of the provisions of this Section 8.2,
nothing herein shall be deemed to waive or excuse any Seller from
any obligation on the part of any such Seller, or any condition
for the benefit of Purchaser, to obtain any necessary consents of
any person or entity to the assignment to Purchaser of any of the
Purchased Assets or any contract, lease, agreement or commitment
required to be assigned hereunder.
8.3. Further Assurances. From time to time after the
Closing, each Seller, without further consideration, will (i)
execute and deliver, or cause its affiliates to execute and
deliver, to Purchaser (or its designee(s)) such instruments of
sale, transfer, conveyance, assignment and delivery, and such
consents, assurances, powers of attorney and other instruments as
may be requested by Purchaser or its counsel in order to vest in
Purchaser or WIL all right, title and interest of Millipore and
each Foreign Affiliate in and to the Purchased Assets (including,
without limitation, the Waters Intellectual Property and the
Millipore Contributed Assets) and otherwise in order to carry out
the purpose and intent of this Agreement and (ii) take such
actions as may be reasonably necessary or desirable to transfer
to Purchaser the Millipore Contributed Assets and (y) enable
Purchaser to obtain all governmental permits and consents which
are necessary or desirable in connection with the operation of
the Business. In addition, Millipore shall (i) use its
reasonable efforts to provide to Purchaser by April 30, 1994, and
in any event will provide no later than May 7, 1994, financial
statements relating to the operation of the Waters Division for
each of the three fiscal years ending on or about December 31,
1993, 1992 and 1991 and the fiscal quarter ending on or about
March 31, 1994 and (ii) provide to Purchaser, on or prior to the
thirtieth (30th) day following the Closing Date, financial
statements relating to the operation of the Waters Division for
each fiscal quarter (or portion thereof) beginning on or after
March 31, 1994 and ending on the Closing Date, each of which
statements shall satisfy the requirements of Regulation S-X of
the Securities Act of 1933, as amended.
8.4. Power of Attorney. Effective upon the Closing Date,
each Seller hereby irrevocably constitutes and appoints Purchaser
and its successors, assigns and designees as its true and lawful
attorney-in-fact, with full power of substitution, in the name of
Purchaser or such Seller, on behalf of and for the benefit of
Purchaser, to collect all accounts receivable and other items
being transferred, conveyed and assigned to Purchaser as provided
herein; to endorse, without recourse, checks, notes and other
instruments relating to the Purchased Assets in the name of such
Seller; to institute and prosecute, in the name of such Seller,
all proceedings which Purchaser may deem proper in order to
collect, assert or enforce any claim, right or title of any kind
in or to the Purchased Assets; to defend and compromise any and
all actions, suits or proceedings in respect of any of the
Purchased Assets; and to do all such acts and things in relation
to the Purchased Assets as Purchaser may deem advisable. Each
Seller agrees that the foregoing powers are coupled with an
interest and shall be irrevocable by such Seller. Each Seller
further agrees that Purchaser shall retain for its own account
any amounts collected pursuant to the foregoing powers. If any
Seller receives any payments on account of the Purchased Assets
to which Purchaser is entitled hereunder, such Seller shall
promptly notify Purchaser thereof, hold such amounts to which
Purchaser is entitled in trust for Purchaser and promptly
transfer and deliver to Purchaser any cash or other property
received by such Seller, directly or indirectly, at any time
after the Closing Date in respect of any accounts receivable or
otherwise relating to the assets, properties, rights or
businesses transferred, conveyed and assigned to Purchaser as
provided herein.
8.5. Confidentiality. Millipore will not, and will not
permit any of its other affiliates to, disclose or furnish to any
person, firm or corporation, without the prior written consent of
Purchaser, the name of any customer or employees of the Waters
Division, or any other confidential or proprietary information
concerning the Business, including all confidential and
proprietary information included in the Waters Intellectual
Property, unless required to do so by applicable law or the
information is at the time otherwise readily available from
public sources, through no fault of Millipore or any of its other
affiliates. Purchaser acknowledges that customers of the Waters
Division may also be customers of Millipore's other businesses.
8.6. Employees and Employee Benefits Plans.
(i) Allocation of Responsibilities. With respect to
the Transferred Employees, Millipore shall be responsible for (a)
all liabilities, obligations and commitments relating to all
wages, salaries, bonuses and other forms of compensation and
related expenses, including without limitation obligations for
vacation and all applicable payroll taxes, attributable to the
period ending at the time of Closing and (b) all claims incurred
or benefits accrued prior to the time of Closing under the
employee benefit plans, programs and arrangements maintained by
Millipore (or any subsidiary or related company); except for, in
each case, such liabilities constituting Assumed Liabilities.
(ii) Severance. Purchaser shall not assume any
liability or obligation to provide severance benefits to any
person, including but not limited to, any amounts payable under
foreign law ("Severance Obligations") which arises from events
occurring on or prior to the time of Closing. Except as
otherwise provided in Section 8.7, Purchaser hereby agrees to
indemnify and hold harmless Millipore and any of its affiliates
with respect to any Severance Obligation which arises from events
occurring after the time of Closing.
(iii) COBRA. Millipore shall be responsible for
satisfying the "continuation coverage" requirements for "group
health plans" under Section 4980B of the Code or Part 6 of
Title I of ERISA ("COBRA") for all of Millipore's employees who
do not become Transferred Employees or who are receiving such
continuation coverage as of the Closing Date.
(iv) Disability, Workers Compensation and Unemployment
Compensation. Millipore shall be responsible for any and all
liabilities arising in connection with any person receiving
workers compensation, long-term disability and unemployment
compensation as of the Closing Date, and for any person who
becomes entitled to long-term disability benefits after the
Closing Date but who was disabled and in the disability waiting
period as of the Closing Date.
(v) Retiree Benefits. Millipore shall remain liable
for all welfare benefits, including retiree insurance benefits
and medical benefits, and pension benefits being provided as of
the Closing Date to all persons who retired from the Waters
Business on or prior to the Closing Date and to their eligible
dependents.
(vi) Section 125 Plan. As of the Closing Date,
Millipore shall cause the credits and debits of the accounts of
the Transferred Employees as of the Closing Date under the
Section 125 health care spending account and the Section 125
cafeteria plan (the "Section 125 Plans") to be segregated into
identical separate plans to be assumed and maintained by
Purchaser after the Closing. The Section 125 Plans shall give
full effect to, and continue in effect, salary reduction
elections made under Millipore's plan.
(vii) Supplemental Nonqualified Plans. If any
Transferred Employee is a participant in a nonqualified deferred
compensation plan, Millipore shall transfer to Purchaser any and
all obligations under such plan along with assets equal to such
obligations.
(viii) Extrel Corporation Employees' Tax Shelter
Savings Plan. Purchaser shall assume, as of the Closing Date,
sponsorship of the Extrel Corporation Employees' Tax Shelter
Savings Plan.
(ix) Puerto Rico Savings Plan. Certain Transferred
Employees may participate under a savings plan established and
maintained in Puerto Rico. If Purchaser so requests within a
reasonable period after the Closing Date, Millipore shall
transfer to a successor plan established by Purchaser the value
of the account balances maintained under said plan for the
Transferred Employees participating thereunder.
8.7. Puerto Rico. Millipore will indemnify Purchaser and
hold it harmless against any loss, liability, damage or expense
relating to or arising in connection with, the relocation of
Waters Division's Puerto Rico operations, including without
limitation severance and other costs.
9. Survival of Representations and Warranties. Except as
otherwise specifically provided herein, all representations,
warranties of Millipore and MIHL and the Purchaser contained
herein or in any document, certificate or other instrument
required to be delivered hereunder in connection with the
transactions contemplated hereby shall survive for a period of
three (3) years following the Closing; provided, that (i)
representations and warranties made in Section 4.2 shall survive
indefinitely, (ii) representations and warranties made in Section
4.11 shall survive until the expiration of the applicable statute
of limitations or, if later, thirty (30) days after receiving
notice of the assessment of additional Taxes from the relevant
taxing authority, and (iii) representations and warranties made
in Section 4.9(ii) shall survive for a period of five years;
provided further, that in the event that any Purchaser Claim or
Millipore Claim, as the case may be, for a breach of any
representation or warranty has been asserted, in accordance with
Section 12.4, prior to the last day such representation or
warranty would otherwise survive pursuant to this Section 9.1,
such representation and warranty shall survive until final
disposition of such claim.
10. Disclosures of Information by Former Millipore Employees.
Effective as of the Closing Date, Millipore hereby waives all
rights under any employee agreements regarding confidentiality,
non-disclosure or non-use of information only to the extent
necessary to permit former Millipore employees who become
employed by WIL or any Subsidiary or by the Purchaser to disclose
confidential information concerning the Business to the Purchaser
and its affiliates.
11. Finders and Brokers. The Purchaser and Millipore will,
except as set forth below, indemnify and hold harmless each other
against and in respect of any claims for brokerage or other
commission relative to this Agreement or the transactions
contemplated hereby, based in any way on agreements,
arrangements, or understandings claimed to have been made by such
party with any third party. The Purchaser and Millipore each
represent and warrant to the other that they have not dealt with
any broker or finder in connection with the transactions
contemplated by this Agreement, and do not know of any person,
firm or corporation asserting a brokerage, finder's or similar
claim in connection with the making or negotiation of this
Agreement or the transactions contemplated hereby, except that
Millipore has retained CS First Boston to assist it in the
transaction contemplated by this Agreement and Millipore will be
solely responsible for all fees and commissions due to that firm
relating to this Agreement or the transactions contemplated
hereby.
12. Indemnification.
12.1. Indemnity by Millipore. Millipore hereby agrees to
indemnify, defend and hold harmless the Purchaser and its
directors, officers and affiliates against and in respect of any
Damages (as defined in Section 12.7 hereof) resulting from (a)
any breach of any of the representations or warranties made by
Millipore, Waters France, or MIHL contained in this Agreement,
any exhibit or Schedule hereto or any other agreement, document
or instrument delivered by Millipore, Millipore France or MIHL in
connection with the transactions contemplated hereby, (b) any
breach of the covenants and agreements made by Millipore,
Millipore France or MIHL in this Agreement or any other
agreement, document or instrument delivered by Millipore or MIHL
in connection with the transactions contemplated hereby
(including, without limitation, the Transition Services
Agreement), or (c) the Excluded Liabilities, including
Liabilities associated with broker's and finder's fees and
similar compensation based on arrangements to which Purchaser or
any Affiliate thereof is not a party, and notwithstanding any
other remedy that may be available to Purchaser with respect to
the Excluded Liabilities, and any and all actions, suits and
proceedings resulting from any of the foregoing (hereinafter
called a "Purchaser Claim" or "Purchaser Claims"). Following the
Closing Date, in no event shall Waters France or WIL and its
Subsidiaries have any liability whatsoever for any breaches of
the representations and warranties of Waters France or WIL and
its Subsidiaries, and Sellers shall in no event seek contribution
from Waters France or WIL and its Subsidiaries for any such
breaches or in respect of any other payments required to be made
by Sellers pursuant to this Agreement.
12.2. Limitation of Liability. Except with respect to
Purchaser Claims based upon fraud on the part of Millipore or
MIHL ("Excluded Claims"), and subject to the limitations set
forth in the second paragraph of Section 4 above, Millipore shall
be liable, pursuant to Section 12.1(a) for breaches of
representations or warranties set forth in Section 4 hereof, only
if the aggregate of all Damages in respect of Purchaser Claims
exceeds $500,000 in which event Millipore shall be liable only to
the extent that Damages in respect of such Purchaser Claims
exceed in the aggregate $500,000.
Except with respect to Purchaser Claims based upon fraud on
the part of Millipore or MIHL, Millipore's aggregate liability
shall not exceed an amount equal to the Purchase Price.
12.3. Purchaser Indemnity. Purchaser hereby agrees to
indemnify and hold harmless Millipore and its directors, officers
and affiliates against and in respect of any Damages (as defined
in Section 12.7 hereof) resulting from (a) the inaccuracy of any
representation or warranty made by the Purchaser or (b) any
misrepresentation, breach of warranty or non-fulfillment of any
agreement or covenant of the Purchaser contained herein or in any
agreement or instrument required to be entered into in connection
herewith and specifically identified herein or (c) any
misrepresentation in or omission from any certificate required to
be furnished by the Purchaser hereunder and specifically
identified herein, or (d) in respect of any claim arising in
respect of the operation of the Business subsequent to the
Closing, or (e) the imposition or attempted imposition on
Millipore or any of its affiliates of any liability or obligation
assumed by WIL, Waters France or a Subsidiary as described
herein; and any and all actions, suits and proceedings resulting
from any of the foregoing (hereinafter called a "Millipore Claim"
or "Millipore Claims").
12.4. Certification of Claims. If the Purchaser of
Millipore is of the Opinion that any Purchaser Claim or a
Millipore Claim, as the case may be, has occurred or will or may
occur, Purchaser or Millipore, as the case may be, shall so
notify the other, and each such notice shall be in writing and
shall specify the circumstances of such asserted Purchaser Claim
or Millipore Claim.
12.5. Termination of Rights Hereunder. Notwithstanding any
other provision hereof, no Purchaser Claim or Millipore Claim may
be made or lawsuit instituted under the provisions of this
Section 12 (except for Reserved Claims) more than three years
after the Closing Date except for claims for breaches of certain
representations and warranties referred to in Section 12.1(a).
The obligation to provide indemnity for the breaches of
representations and warranties referred to in Section 12.1(a)
shall be as follows: (i) with respect to claims made pursuant to
Section 4.2, there shall be no time limit on claims for
indemnification, (ii) with respect to claims made pursuant to
Section 4.11 claims must be made within the applicable statute of
limitations or, if later, within 30 days of receiving notice of
the assessment of additional Taxes from the relevant taxing
authority, and (iii) with respect to claims made pursuant to
Section 4.9(ii), claims must be made on or prior to the fifth
anniversary of the Closing Date. "Reserved Claim" shall mean any
Purchaser Claims or Millipore Claims which have been asserted, in
accordance with Section 12.4, prior to the applicable date
described in this Section 12.5.
12.6. Third Party Actions.
(1) In the event any claim is made, suit is brought or
other proceeding is instituted against the Purchaser, or any
of its respective directors, officers or affiliates which
involves or appears reasonably likely to involve a Purchaser
Claim for which indemnification may be sought against
Millipore hereunder, Purchaser will, promptly (and in any
event within thirty (30) days) after receipt of notice of
any such claim, suit or proceeding, notify Millipore of the
commencement thereof. The failure to so notify Millipore of
the commencement of any such claim, suit or proceeding will
relieve Millipore from liability only to the extent that
such failure adversely affects the ability of Millipore to
defend its interests in such claim, action or proceeding.
Millipore (at its expense) shall have the right and shall be
given the opportunity to assume and control the defense of
such claim, suit or proceeding, provided that Millipore must
conduct the defense of the claim actively and diligently
thereafter in order to preserve its rights in this regard;
and provided further that Purchaser and its counsel (at
Purchaser's expense) may participate in (but not control the
conduct of) all matters pertaining to the defense or
settlement of such claim, suit or proceeding. Whether or
not Millipore elects to assume such defense, Purchaser shall
not, except at its own cost, make any settlement with
respect to any such claim, suit or proceeding without the
prior consent of Millipore. In the event that Purchaser
determines to settle any such claim, suit or proceeding
without the prior consent of Millipore, Millipore shall have
no further indemnification obligations with respect to such
claim, suit or proceeding. Purchaser's consent to the
settlement of any such claim, suit or proceeding by
Millipore shall be required and shall not be unreasonably
withheld, but such consent shall not be required if (or to
the extent that) such settlement only requires the payment
of a monetary amount. In the event that Purchaser withholds
its consent to any settlement for any reason and thereafter
a final judgment is entered against Millipore and/or the
Purchaser pursuant to which damages exceed the amount of the
proposed settlement, Millipore shall have no obligation to
indemnify the Purchaser against and in respect of the amount
by which the damages resulting from such final judgment
exceeds the amount of the proposed settlement.
(2) In the event Millipore does not assume and conduct
the defense of the claim in accordance with Section 12.6(a)
above, (i) Purchaser may defend against, and consent to the
entry of any judgment or enter into any settlement with
respect to the claim in any manner Purchaser may deem
appropriate (and Purchaser need not consult with, or obtain
any consent from Millipore in connection therewith) and (ii)
Millipore will remain responsible for any adverse
consequences Purchaser may suffer resulting from, arising
out of, relating to, in the nature of or caused by the claim
to the fullest extent provided in this Section 12.
(3) In the event any claim is made, suit is brought or
other proceeding is instituted against Millipore which
involves or appears reasonably likely to involve a Millipore
Claim for which indemnification may be sought against
Purchaser hereunder, Millipore will, promptly (and in any
event within thirty (30) days) after receipt of notice of
any such claim, suit or proceeding, notify the Purchaser of
the commencement thereof. The failure to so notify the
Purchaser of the commencement of any such claim, suit or
proceeding will relieve the Purchaser from liability only to
the extent that such failure adversely affects the ability
of the Purchaser to defend its interest in such claim,
action or proceeding. The Purchaser (at its expense) shall
have the right and shall be given the opportunity to assume
and control the defense of such claim, suit or proceeding,
provided that Millipore and its counsel may participate in
(but not control the conduct of) all matters pertaining to
the defense or settlement of such claim, suit or proceeding.
Whether or not Purchaser elects to assume such defense,
Millipore shall not, except at its own cost, make any
settlement with respect to any such claim, suit or
proceeding without the prior consent of the Purchaser. In
the event that Millipore determines to settle any such
claim, suit or proceeding without the prior consent of the
Purchaser, the Purchaser shall have no further
indemnification obligations with respect to such claim, suit
or proceeding. Millipore's consent to the settlement of any
such claim, suit or proceeding by Purchaser shall be
required and shall not be unreasonably withheld, but such
consent shall not be required if (or to the extent that)
such settlement only requires the payment of a monetary
amount. In the event that Millipore withholds its consent
to any settlement for any reason and thereafter a final
judgment is entered against the Purchaser and/or Millipore
pursuant to which damages exceed the amount of the proposed
settlement, Purchaser shall have no obligation to indemnify
Millipore against and in respect of the amount by which the
damages resulting from such final judgment exceeds the
amount of the proposed settlement.
12.7. Definition of Damages. For purposes of this
Section 12, the term "Damages" shall mean the amount of any loss,
claim, demand, damage, deficiency, assessment, judgment,
remediation, cost or expense (including reasonable attorneys',
consultants' and experts' fees and expenses) actually incurred,
less any amount recovered under an insurance policy carried by
the party or parties seeking indemnification pertaining to such
loss, claim, demand, damage, deficiency, cost or expense.
Additionally, the indemnified party will pay to the indemnifying
party, as and when received, any Tax benefit obtained by the
indemnified party with respect to the Damages under any federal,
state, local or foreign Tax laws. In the event that an
indemnified party hereunder pays a claim covered by the
indemnified party's insurance for which it is entitled to
indemnification by the other party hereunder, such indemnified
party shall pay such claim and the indemnifying party shall
reimburse the indemnified party the full amount of such claim
(less the amount of any insurance proceeds previously recovered
by the indemnified party with respect to such claim, plus the
aggregate amount by which such indemnified party's premiums with
respect to such insurance is increased as the sole result of the
payment of such claim). If the indemnified party subsequently
receives insurance proceeds with respect to such claim, the
indemnified party shall pay the indemnifying party such insurance
proceeds up to the amount actually paid by the indemnifying
party. The indemnified party shall be required to use its best
efforts to seek and obtain such insurance proceeds as quickly as
practicable.
12.8. Duty to Mitigate.
(a) Purchaser agrees at all times to use its reasonable
efforts to minimize, and to cause its designee(s), Waters France,
WIL and its Subsidiaries to minimize, the cost to Millipore of
the obligation to indemnify the Purchaser (and the other persons
and entities identified in Section 12.1) for any damages in
accordance with the terms and conditions of this Section 12.
(b) Millipore agrees at all times to use its reasonable
efforts to minimize the cost to the Purchaser of the obligation
to indemnify Millipore (and the other persons and entities
identified in Section 12.3) for any damages in accordance with
the terms and conditions of this Section 12.
12.9. Exclusive Remedy; Waiver of CERCLA Rights.
(a) Except with respect to Purchaser Claims based upon
fraud, and the application of the provisions of Section 14.9, the
rights of the Purchaser under this Section 12 shall be the
exclusive remedy of the Purchaser with respect to any breach or
alleged breach of the representations, warranties and covenants
of Millipore set forth herein.
(b) Except with respect to Millipore Claims based upon
fraud, the rights of Millipore under this Section 12 shall be the
exclusive remedy of Millipore with respect to any breach or
alleged breach of the representations, warranties and covenants
of the Purchaser as set forth herein.
12.10. Arbitration Procedures.
(a) Millipore, Millipore France and MIHL, on the one hand,
and Purchaser, on the other hand (the "Parties") agree that the
arbitration procedure set forth below shall be the sole and
exclusive method for resolving and remedying claims (i) for
Damages arising out of the provisions of Section 7(b) above (the
"Disputes") and (ii) the enforcement of Section 14.9 below.
Nothing in this Section 12.10 shall prohibit a Party from
instituting litigation to enforce any Final Determination (as
defined in clause (v) below) or availing itself of the other
remedies set forth in Section 14.9 below. The Parties hereby
agree and acknowledge that, except as otherwise provided in this
Section 12.10 or in the Commercial Arbitration Rules of the
American Arbitration Association as in effect from time to time,
the arbitration procedures and any Final Determination hereunder
shall be governed by, and shall be enforced pursuant to, the
Uniform Arbitration Act.
(b) In the event that any Party asserts that there exists a
Dispute, such Party shall deliver a written notice to each other
Party involved therein specifying the nature of the asserted
Dispute and requesting a meeting to attempt to resolve the same.
If no such resolution is reached within ten (10) business days
after such delivery of such notice, the Party delivering such
notice of Dispute (the "Disputing Person") may, within forty-
five (45) business days after delivery of such notice, commence
arbitration hereunder by delivering to each other Party involved
therein a notice of arbitration (a "Notice of Arbitration").
Such Notice of Arbitration shall specify the matters as to which
arbitration is sought, the nature of any Dispute, the claims of
each Party to the arbitration and shall specify the amount and
nature of any damages, if any, sought to be recovered as a
result of any alleged claim, and any other matters required to be
included therein, if any, by the Commercial Arbitration Rules of
the American Arbitration Association as in effect from time to
time.
(c) Each Party shall select one independent arbitrator
expert in the subject matter of the Dispute (the arbitrators so
selected shall be referred to herein as the "Purchaser
Arbitrator" and the "Millipore Arbitrator", respectively). In
the event that either Party fails to select an independent
arbitrator as set forth herein within twenty (20) days from
delivery of a Notice of Arbitration, then the matter shall be
resolved by the arbitrator selected by the other Party. The
Millipore Arbitrator and the Purchaser Arbitrator shall select a
third independent arbitrator expert in the subject matter of the
dispute, and the three arbitrators so selected shall resolve the
matter according to the procedures set forth in this Section
12.10. If the Millipore Arbitrator and the Purchaser Arbitrator
are unable to agree on a third arbitrator within twenty (20) days
after their selection, the Millipore Arbitrator and the Purchaser
Arbitrator shall each prepare a list of three independent
arbitrators. The Millipore Arbitrator and the Purchaser
Arbitrator shall each have the opportunity to designate as
objectionable and eliminate one arbitrator from the other
arbitrator's list within seven (7) days after submission thereof,
and the third arbitrator shall then be selected by lot from the
arbitrators remaining on the lists submitted by the Millipore
Arbitrator and the Purchaser Arbitrator.
(d) The arbitrator(s) selected pursuant to subparagraph (c)
above will determine the allocation of the costs and expenses of
arbitration based upon the percentage which the portion of the
contested amount not awarded to each Party bears to the amount
actually contested by such Party. For example, if Purchaser
submits a claim for $1,000, and if Millipore, contests only $500
of the amount claimed by Purchaser, and if the arbitrator(s)
ultimately resolves the dispute by awarding Purchaser $300 of the
$500 contested, then the costs and expenses of arbitration will
be allocated 60% (i.e., 300/500) to Millipore and 40% (i.e.,
200/500) to Purchaser.
(e) The arbitration shall be conducted under the Commercial
Arbitration Rules of the American Arbitration Association as in
effect from time to time, except as modified by the agreement of
Purchaser and Millipore. The arbitrator(s) shall so conduct the
arbitration that a final result, determination, finding, judgment
and/or award (the "Final Determination") is made or rendered as
soon as practicable, but in no event later than ninety (90)
business days after the delivery of the Notice of Arbitration nor
later than ten (10) days following completion of the arbitration.
The Final Determination must be agreed upon and signed by the
sole arbitrator or by at least two of the three arbitrators (as
the case may be). The Final Determination shall be final and
binding on all parties and there shall be no appeal from or
reexamination of the Final Determination, except for fraud,
perjury, evident partiality or misconduct by an arbitrator
prejudicing the rights of any Party, and to correct manifest
clerical errors.
(f) Any Party may enforce any Final Determination in the
United States District Court for the District of Massachusetts.
For the purpose of any action or proceeding instituted with
respect to any Final Determination, each Party hereby irrevocably
submits to the jurisdiction of such courts, irrevocably consents
to the service of process by registered mail or personal service
and hereby irrevocably waives, to the fullest extent permitted by
law, any objection which it may have or hereafter have as to
personal jurisdiction, the laying of venue of any such action or
proceeding brought in any such court and any claim that any such
action or proceeding brought in such court has been brought in an
inconvenient forum.
(g) If any Party shall fail to pay the amount of Damages
assessed against it within ten (10) days of the delivery to such
Party of such Final Determination, the unpaid amount shall bear
interest from the date of such delivery at the rate described in
Section 2.6 hereof. Interest on any such unpaid amount shall be
compounded semi-annually, computed on the basis of a 365-day year
and shall be payable on demand. In addition, such Party shall
reimburse the other party for any and all costs or expenses of
any nature or kind whatsoever (including but not limited to all
attorneys' fees) incurred in seeking to collect such damages or
to enforce any Final Determination.
13. Termination. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may, at any time prior to the
Closing Date, be terminated: (a) by mutual agreement of
Millipore and the Purchaser; (b) by Millipore or the Purchaser if
the conditions set forth in Section 7.3 shall have not been
fulfilled or waived by the Closing Date; (c) by the Purchaser if
any of the conditions set forth in Section 7.4 shall not have
been fulfilled or waived by the Closing Date; or (d) by Millipore
if (i) by the close of business on July 31, 1994 or, such later
date as the parties may mutually agree, the consummation of the
transactions contemplated hereby have not taken place or (ii) any
of the conditions set forth in Section 7.5 shall not have been
fulfilled by the Closing Date.
In the event of a termination pursuant to clause (a) or (b)
hereof, neither Millipore nor the Purchaser shall have any
further liability to the other. Termination pursuant to clause
(c) or (d) hereof shall be without prejudice to any party's
rights with respect to a breach by any other party.
Each party agrees that upon any termination it will not
disclose, and will cause its directors, officers and
representatives not to disclose, to any other person not a party
to this agreement the event of termination or any of the reasons
therefor except as may be required by applicable law or with the
written consent of the other parties hereto.
14. Preservation of Records. For a period of three years
following the Closing Date, the Purchaser shall preserve and
maintain in reasonably available format all business records of
the Waters Division which are transferred to the Purchaser's
possession pursuant to this Agreement. Thereafter Purchaser
shall preserve and maintain or permit Millipore to preserve or
maintain all business records relating to periods prior to the
Closing and not more than seven years old, on a rolling basis.
Purchaser shall make such records available for all reasonable
purposes on a reasonable basis to Millipore and its
representatives.
14.1. Expenses. Whether or not the transactions
contemplated hereby shall be consummated:
(a) The Purchaser shall pay all of the fees, expenses
and disbursements of its counsel and accountants in
connection with the subject matter of this Agreement and any
amendments hereto and all other costs and expenses incurred
by it in the performance of its obligations under this
Agreement; and
(b) Millipore and MIHL shall pay all of the fees,
expenses and disbursements of their counsel and accountants
in connection with the subject matter of this Agreement and
any amendments hereto and all other costs and expenses
incurred by them in the performance by them of their
obligations under this Agreement.
14.2. Notices. Any notices or other communications
required or permitted hereunder shall be in writing and shall be
deemed to have been given: if delivered by facsimile on the date
delivered (provided a copy is subsequently received by the
recipient of such facsimile), or if mailed, three (3) business
days after being deposited in the United States mail, postage
prepaid and registered or certified, to the address of such party
stated below:
In the case of the Purchaser,
at the following address:
Waters Holding Inc.
34 Maple Street
Milford, Massachusetts 01757
ATTENTION: Chief Executive Officer
with a copy to the Legal
Department at the same address.
with copies to:
AEA Investors Inc.
65 East 55th Street
New York, New York 10022
ATTENTION: Charles F. Baird
Bain Capital, Inc.
2 Copley Place
Boston, Massachusetts 02116
ATTENTION: Joshua Bekenstein
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
ATTENTION: Karl E. Lutz, P.C.
Kirkland & Ellis
153 East 53rd Street
New York, New York 10027
ATTENTION: Stephen M. Zide, Esq.
In the case of Millipore, at the
following address:
Millipore Corporation
80 Ashby Road
Bedford, Massachusetts 01730
ATTENTION: Geoffrey Nunes, Senior Vice President and
General Counsel
With a copy to:
John E. Beard, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110
In the case of MIHL, at the
following address:
Millipore Investment Holdings, Ltd.
1013 Centre Road, Suite 350
Wilmington, Delaware 19805
With a copy to:
John E. Beard, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110
or to such other person or address as any party may designate for
itself by notice to the other parties given in accordance with
the provisions hereof.
14.3. Successors in Interest. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and their respective successors, heirs, representatives and
assigns. The Purchaser shall have the right to assign its entire
interests (or any portion thereof) in this Agreement to one or
more other corporations or entities controlling, controlled by or
under common control with Purchaser, prior to and after the
Closing, but no such assignment shall relieve the Purchaser of
its ultimate responsibility for the Purchaser's obligations
hereunder. Notwithstanding the foregoing, Purchaser may, at any
time, assign its rights hereunder, for collateral purposes, to
any person or entity providing financing to Purchaser.
14.4. Entire Agreement, etc. This Agreement, together with
the Transition Services Agreement and the other agreements and
other documents executed in connection herewith on and after the
date hereof, represents the entire understanding and agreement
between the parties hereto with respect to the transactions
contemplated herein, and supersedes all prior oral or written
agreements, documents, understandings, negotiations and
representations made by and between such parties, all of which
are hereby terminated. No amendment or modification of this
Agreement will be effective unless reduced to writing and signed
by all parties thereto. The Schedules and Exhibits attached
hereto shall constitute part of this Agreement.
14.5. Counterparts. This Agreement may be executed in two
or more counterparts by the parties hereto, each of which when so
executed will be an original, but all of which will together
constitute one and the same instrument.
14.6. Waivers. The failure of any party hereto at any time
to require performance by any other party of any provision of
this Agreement shall not affect the right of such party to
require performance of that provision, and any waiver by any
party of any breach of any provision of this Agreement shall not
be construed as a waiver of any continuing or succeeding breach
of such provision, a waiver of the provision itself, or a waiver
of any right under this Agreement.
14.7. Applicable Law. This Agreement shall take effect as
a sealed contract and shall be governed by and the legal
relationships of the parties determined and construed in
accordance with the laws of The Commonwealth of Massachusetts
applicable to contracts made and performed wholly within said
State.
14.8. Severability. In case any one or more of the
provisions or parts of a provision contained in this Agreement
shall for any reason be held to be invalid, illegal or
unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any
other provision or part of a provision of this Agreement or the
validity or enforceability of such provision or portion thereof
in any other jurisdiction, but this Agreement shall be reformed
and construed in any such jurisdiction as if such invalid or
illegal or unenforceable provision or part of a provision had
never been contained herein and such provision or part shall be
reformed so that it would be valid, legal and enforceable to the
maximum extent permitted in such jurisdiction.
14.9. Specific Performance. Sellers acknowledge that the
business of the Business is unique and recognize and affirm that
in the event of a breach of this Agreement and/or the Transition
Services Agreement by Sellers, money damages may be inadequate
and Purchaser may have no adequate remedy at law. Accordingly,
Sellers agree that Purchaser shall have the right, in addition to
any other rights and remedies existing in its favor, to enforce
its rights and Sellers' obligations hereunder and/or the
Transition Services Agreement not only by an action or actions
for damages but also by an action or actions for specific
performance, injunctive and/or other equitable relief.
IN WITNESS WHEREOF, the parties hereto have, by their duly
authorized representatives, executed this Agreement under seal on
the date first above written.
MILLIPORE CORPORATION
By
Geoffrey Nunes
Senior Vice President and
General Counsel
MILLIPORE INVESTMENT HOLDINGS,
LTD.
By
Paul O'Connor
President
MILLIPORE, S.A.
By _________________________
Geoffrey Nunes
Attorney-in-Fact
WATERS HOLDING INC.
By
Title:
ACKNOWLEDGEMENT
State of New York) ss.:
County of New York
On the 31st day of March in the year 1994 before me
personally came Geoffrey Nunes to me known, who, being by me duly
sworn did depose and say that he resides in Cambridge,
Massachusetts, that he is the Senior Vice President and General
Counsel of Millipore Corporation, the corporation described in
and which executed the above instrument; and that he signed his
name thereto by order of the Board of Directors of said
corporation.
____________________________
Notary Public
My commission expires:
State of New York) ss.:
County of New York
On the 31st day of March in the year 1994 before me
personally came Paul O'Connor to me known, who, being by me duly
sworn did depose and say that he resides in Needham,
Massachusetts, that he is the President of Millipore Investment
Holdings, Ltd., the corporation described in and which executed
the above instrument; and that he signed his name thereto by
order of the Board of Directors of said corporation.
____________________________
Notary Public
My commission expires:
State of New York) ss.:
County of New York
On the 31st day of March in the year 1994 before me
personally came Geoffrey Nunes to me known, who, being by me duly
sworn did depose and say that he resides in Cambridge,
Massachusetts, that he is the Director of and Attorney-in-Fact
for Millipore, S.A., the corporation described in and which
executed the above instrument; and that he signed his name
thereto by order of the Board of Directors of said corporation.
____________________________
Notary Public
My commission expires:
State of New York) ss.:
County of New York
On the 31st day of March in the year 1994 before me
personally came _________________________ to me known, who, being
by me duly sworn did depose and say that he resides in
______________________________, that he is the
____________________ of Waters Holding Inc., the corporation
described in and which executed the above instrument; and that he
signed his name thereto by order of the Board of Directors of
said corporation.
____________________________
Notary Public
My commission expires:
ANNEX A
Subsidiaries of Millipore which conduct Waters Division
Business:
Country of Incorporation/
Name Branch
Millipore GesmbH Austria
Millipore Australia Pty. Ltd. Australia
Millipore S.A./N.V. Belgium
Millipore Industria E. Comercio Ltda Brazil
Millipore A/S Denmark
Millipore Oy Finland
Millipore S.A. France
Millipore GmbH Germany
Millipore S.p.A. Italy
Millipore SA de CV Mexico
Millipore BV Netherlands
Millipore Iberica S.A. Spain
Millipore AB Sweden
Millipore AG Switzerland
Millipore (UK) Limited United Kingdom
Millipore (China) Limited Hong Kong/China
ANNEX B
Subsidiaries of Waters Investments Limited which conduct
Waters Division Business:
State of Incorporation/
Name Location of Branch
Nihon Waters Limited Delaware/Japan
Waters Asia LimitedDelaware/Hong
Kong, Malaysia,
Singapore,
Taiwan
ANNEX C
Subsidiaries of Millipore (newly created), the stock of which
will be purchased by Purchaser (or its designee(s)).
Name Country of Incorporation
Waters S.A. France
TABLE OF CONTENTS Page
1. Definitions 2
1.1. "Agreement" 3
1.2. "Balance Sheet" 3
1.3. "Business 3
1.4. "Closing Date" 3
1.5. "ConSep License" 3
1.6. "Documents" 3
1.7. "Foreign Affiliates" 3
1.8. "GAAP" 3
1.9. "Millipore GAAP" 4
1.10. "Millipore Contributed Assets" 4
1.11. "Purchased Assets" 4
1.12. "Sellers" 4
1.13. "Tax" 4
1.14. "TOF License" 4
1.15. "Transition Services Agreement" 4
1.16. "Waters Division Financial Statements"4
1.17. "Waters Intellectual Property" 4
2.Acquisition of Purchased Assets, WIL and Waters France
by Purchaser 5
2.1. Sale of Waters France and WIL Stock 5
2.2. Sale of Purchased Assets 6
2.3. Assumption of Certain Obligations 8
2.4. Excluded Liabilities 9
2.5. Purchase Price 10
2.6. Adjustment to Purchase Price 10
3. Closing 13
3.1. Closing 13
4. Representations and Warranties
of Millipore and MIHL. 14
4.1. Corporate Status 15
4.2. Capitalization and Ownership of Shares 15
4.3. Subsidiaries 16
4.4. Authority 16
4.5. No Conflict 17
4.6. Financial Statements; Assets and
Business 17
4.7. No Undisclosed Liabilities, etc 18
4.8. Inventories; Accounts Receivable 18
4.9. Compliance with Laws 19
4.10. Consents 20
4.11. Taxes 20
4.12. Property 21
4.13. Patents, Technologies, etc 22
4.14. Absence of Certain Changes 24
4.15. ERISA Plans 26
4.16. Labor 32
4.17. Insurance 32
4.18. Contracts 32
4.19. Employees 33
4.20. Litigation 33
4.21. Products Liability 34
4.22. Suppliers and Customers 34
4.23. Prohibited Foreign Trade
Practices Act: Sensitive Payments 34
4.24. Burdensome Agreements 35
4.25. Disclosure 35
4.26. Closing Date 35
5. Pre-Acquisition Notifications 35
6. Representations and Warranties of Purchaser 35
6.1. Corporate Existence 35
6.2. Corporate Authority 36
6.3. No Conflict 36
6.4. No Consents 36
7. Covenants of Millipore and WIL. 37
7.1. Continuance of Business 37
7.2. Access to Information 38
7.3. Conditions to Closing by the Parties; Possible
Deferral of Closing with Respect to Certain
Foreign Jurisdictions 39
7.4. Conditions to Closing by the Purchaser 40
7.5. Conditions to Closing by Millipore 44
8. Post Closing Covenants 45
8.1. Tax Matters 45
8.2. Non-Assignable Assets 48
8.3. Further Assurances 49
8.4. Power of Attorney 49
8.5. Confidentiality 50
8.6. Employees and Employee Benefits Plans 50
9. Survival of Representations and Warranties 52
10. Disclosures of Information by Former Millipore
Employees 52
11. Finders and Brokers 52
12. Indemnification 53
12.1. Indemnity by Millipore 53
12.2. Limitation of Liability 53
12.3. Purchaser Indemnity 54
12.4. Certification of Claims 54
12.5. Termination of Rights Hereunder 54
12.6. Third Party Actions 55
12.7. Definition of Damages 56
12.8. Duty to Mitigate 57
12.9. Exclusive Remedy; Waiver of CERCLA
Rights 57
12.10. Arbitration Procedures 58
13. Termination 60
14. Preservation of Records 60
14.1. Expenses 61
14.2. Notices 61
14.3. Successors in Interest 62
14.4. Entire Agreement, etc 63
14.5. Counterparts 63
14.6. Waivers 63
14.7. Applicable Law 63
14.8. Severability 63
14.9. Specific Performance 64
Annexes
Annex A -Subsidiaries of Millipore which conduct Waters Division
Business
Annex B -Subsidiaries of Waters Investment Limited which conduct
Waters Division Business
Annex C -Subsidiaries of Millipore (newly created), the stock of
which will be purchased by Purchaser (or its
desginee(s)).
Exhibits
Exhibit A -Millipore Contributed Assets
Exhibit B -Transition Service Agreement
Exhibit C -Letter from the United States Environmental
Protection Agency
Exhibit D -Commitment Letter re Financing