As filed with the Securities and Exchange Commission on January 22, 2002
Registration No. 333-75834
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
Amendment No. 1 to
Form S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------
APOGENT TECHNOLOGIES INC.
(Exact name of registrant as specified in its charter)
Wisconsin 3843 22-2849508
(State or other jurisdiction
of
incorporation or (Primary Standard Industrial (I.R.S. Employer
organization) Classification Code Number) Identification No.)
AND ITS GUARANTOR SUBSIDIARIES
Delaware Apogent Finance Company 02-0522134
California Applied Biotech, Inc. 33-0447325
Delaware Barnstead Thermolyne Corporation 13-3326802
Massachusetts BioRobotics Inc. 04-3394825
Wisconsin Chase Scientific Glass, Inc. 62-1711339
Wisconsin Consolidated Technologies, Inc. 74-2951231
Delaware Erie Scientific Company 13-3326819
Delaware Erie Scientific Company of Puerto Rico 22-2855227
Delaware Erie UK Holding Company 02-0523659
Wisconsin Ever Ready Thermometer Co., Inc. 22-3329530
California Forefront Diagnostics, Inc. 33-0733551
New York Genevac Inc. 13-3614495
Delaware G&P Labware Holdings Inc. 02-0528748
Delaware Lab-Line Instruments, Inc. 36-2160341
California Lab Vision Corporation 94-3204455
Delaware Matrix Technologies Corporation 04-2876817
Delaware Microgenics Corporation 68-0148167
California Molecular BioProducts, Inc. 95-3244122
Delaware Nalge Nunc International Corporation 13-3326816
Wisconsin National Scientific Company 58-2315507
Connecticut The Naugatuck Glass Company 06-0465440
Wisconsin NERL Diagnostics Corporation 05-0486109
Wisconsin Owl Separation Systems, Inc. 39-1915146
Wisconsin Remel Inc. 74-2826694
Wisconsin Richard-Allan Scientific Company 38-3235594
California Robbins Scientific Corporation 94-2456711
Delaware Samco Scientific Corporation 95-3145731
Delaware Sybron Transition Corp. 13-3326805
Delaware Vacuum Process Technology, Inc. 04-3538751
(State or
other
jurisdiction
of
incorporation
or (Exact name of Guarantor as (I.R.S. Employer
organization) specified in its Charter) Identification Number)
MICHAEL K. BRESSON
Executive Vice
President--General
Counsel
and Secretary
Apogent
Technologies Inc.
48 Congress 10 Pleasant
Street Street, Suite 300
Portsmouth,
New
Hampshire Portsmouth, New
03801 Hampshire 03801
(603) 433-
6131 (603) 433-6131
(Address,
including
zip code,
and
telephone
number,
including (Name, address,
area code, including zip
of code, and
registrant's telephone number,
principal including area
executive code of agent for
offices) service)
Cover continued on following page
Cover continued from previous page
----------------
Copies of all communications, including all communications sent to the agent
should be sent to:
BRUCE C. DAVIDSON
JOSEPH D. MASTERSON
Quarles & Brady LLP
411 East Wisconsin Avenue
Milwaukee, WI 53202
(414) 277-5000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
The registrants hereby amend this registration statement on such date or
dates as may be necessary to delay its effective date until the registrants
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Preliminary Prospectus dated January 22, 2002.
PROSPECTUS
$300,000,000
Apogent Technologies Inc.
2.25% Senior Convertible Contingent Debt Securities/SM/ (CODES/SM/) due 2021,
and Common Stock Issuable Upon Conversion of the CODES
----------------
Apogent Technologies Inc. issued $300,000,000 aggregate principal amount of
2.25% Senior Convertible Contingent Debt Securities (CODES) due 2021 in a
private placement in October 2001. Selling holders can use this prospectus to
resell the CODES and the shares of common stock into which they may be
convertible at any time at market prices prevailing at the time of the sale or
at privately negotiated prices. Payment of all principal, interest (including
contingent interest, if any) and additional amounts, if any, payable on the
CODES are unconditionally guaranteed by certain of our subsidiaries.
The CODES are convertible, at the option of the holder, into shares of our
common stock initially at a conversion rate of 32.7955 shares of common stock
per $1,000 principal amount, which is equivalent to an initial conversion price
of approximately $30.49 per share, subject to adjustments described elsewhere
in this prospectus, in the following circumstances:
. if the sale price of our common stock is above 120% of the conversion
price measured over a specified number of trading days;
. if the ratio of the trading price of the CODES to the conversion value of
the CODES is below 105% measured over a specified number of trading days;
. during any period in which the credit ratings assigned to the CODES by
Moody's Investors Service, Inc., or Moody's, is below "Ba2" or by
Standard & Poor's Rating Services, or Standard and Poor's, is below
"BB+", in which the credit rating assigned to the CODES is suspended or
withdrawn by either rating agency or in which the credit rating assigned
to the CODES is suspended or withdrawn by either rating agency or in
which neither agency continues to rate the CODES or provide ratings
services or coverage to us;
. if the CODES have been called for redemption; and
. upon the occurrence of specified corporate transactions.
The CODES bear interest at a rate of 2.25% per year. We will also pay
contingent interest during any six-month period following a six-month period in
which the average trading price of the CODES is above specified levels.
Interest on the CODES is payable on April 15 and October 15 of each year,
beginning on April 15, 2002. The CODES will mature on October 15, 2021.
The CODES are subject to special United States federal income tax rules. For
a discussion of the special tax regulations governing contingent payment debt
instruments, see "Certain United States Federal Income Tax Considerations."
We may redeem some or all of the CODES on or after October 20, 2004.
You may require us to purchase all or a portion of your CODES on October 20,
2004 and on October 15, 2006, 2011 and 2016, or, subject to specified
exceptions, upon a change of control event.
Shares of our common stock are quoted on the New York Stock Exchange under
the symbol "AOT." The last reported sale price of the shares on December 19,
2001 was $25.72 per share.
In connection with our private placement of the CODES in October, 2001, we
and the guarantors agreed to file a shelf registration statement for the resale
of the CODES, the guarantees and the common stock issuable upon conversion of
the CODES. This prospectus is a part of that shelf registration statement.
The CODES are our senior unsecured obligations, and the guarantees are
senior unsecured obligations of the guarantors. As of September 30, 2001, we
had approximately $532 million of senior debt and the guarantors had
approximately $756 million of indebtedness and other liabilities.
Investing in the CODES involves risks. Risk Factors begin on page 6.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined that
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
Prospectus dated , 2002.
"Convertible Contingent Debt Securities" and "CODES" are service marks of
Lehman Brothers Inc.
TABLE OF CONTENTS
Page
----
About this Prospectus.................................................... i
Forward-Looking Statements............................................... ii
Prospectus Summary....................................................... 1
Risk Factors............................................................. 6
Use of Proceeds.......................................................... 13
Dividend History and Policy.............................................. 13
Price Range of Common Stock.............................................. 13
Consolidated Ratio of Earnings to Fixed Charges.......................... 14
Description of the CODES................................................. 14
Certain United States Federal Income Tax Considerations.................. 36
Selling Holders and Plan of Distribution................................. 43
Legal Matters............................................................ 52
Independent Accountants.................................................. 52
Additional Information................................................... 52
Incorporation of Certain Documents by Reference.......................... 53
Annex A--Form of Notice of Proposed Transfer Pursuant to Registration
Statement............................................................... A-1
Annex B--Form of Notice of Transfer Pursuant to Registration Statement... B-1
About This Prospectus
Apogent Technologies Inc. is a Wisconsin corporation. Our principal
executive offices are located at 48 Congress Street, Portsmouth, New Hampshire
03801, and our telephone number at that address is (603) 433-6131. Our World
Wide Web site address is http://www.apogent.com. The information in our website
is not part of this prospectus.
We originally sold the CODES in reliance on an exemption from registration
under the Securities Act of 1933 for offers and sales of securities that do not
involve a public offering.
No dealer, salesperson or other person has been authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this prospectus in connection with the offer
contained in this prospectus and, if given or made, such information or
representations must not be relied upon as having been authorized by Apogent.
Neither the delivery of this prospectus nor any sale made hereunder shall under
any circumstances create an implication that there has been no change in the
affairs of Apogent since the date hereof. This prospectus does not constitute
an offer to sell or a solicitation of an offer to buy securities other than
those specifically offered hereby or of any securities offered hereby in any
jurisdiction where, or to any person to whom, it is unlawful to make such offer
or solicitation. The information contained in this prospectus speaks only as of
the date of this prospectus unless the information specifically indicates that
another date applies.
This prospectus has been prepared based on information provided by us and by
other sources that we believe are reliable. This prospectus summarizes certain
documents and other information in a manner we believe to be accurate, but we
refer you to the actual documents for a more complete understanding of what we
discuss in this prospectus. In making a decision to invest in the CODES, you
must rely on your own examination of our company and the terms of the offering
and the CODES, including the merits and risks involved.
We are not making any representation to you regarding the legality of an
investment in the CODES by you under any legal investment or similar laws or
regulations. You should not consider any information in this prospectus to be
legal, business, tax or other advice. You should consult your own attorney,
business advisor and tax advisor for legal, business and tax advice regarding
an investment in the CODES.
i
You should contact us with any questions about this offering or if you
require additional information to verify the information contained in this
prospectus.
Each prospective purchaser of the CODES must comply with all applicable laws
and regulations in force in any jurisdiction in which it purchases, offers or
sells the CODES or possesses or distributes this prospectus and must obtain any
consent, approval or permission required by it for the purchase, offer or sale
by it of the CODES under the laws and regulations in force in any jurisdiction
to which it is subject or in which it makes such purchases, offers or sales. We
shall have no responsibility for your compliance with such laws and
regulations.
The CODES being offered pursuant to this prospectus are now, and likely will
continue to be, represented by one or more global CODES, which have been
deposited with, or on behalf of, The Depository Trust Company and registered in
the name of Cede & Co. Beneficial interests in the global securities
representing the CODES will be shown on, and transfers thereof will be effected
through, records maintained by The Depository Trust Company and its
participants. CODES in certificated form will be issued in exchange for the
global securities only under limited circumstances on the terms set forth in
the indenture.
Notice to New Hampshire Residents
NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A
LICENSE HAS BEEN FILED UNDER RSA 421-B WITH THE STATE OF NEW HAMPSHIRE NOR THE
FACT THAT A SECURITY IS EFFECTIVELY REGISTERED OR A PERSON IS LICENSED IN THE
STATE OF NEW HAMPSHIRE CONSTITUTES A FINDING BY THE SECRETARY OF STATE THAT ANY
DOCUMENT FILED UNDER RSA 421-B IS TRUE, COMPLETE AND NOT MISLEADING. NEITHER
ANY SUCH FACT NOR THE FACT THAT AN EXEMPTION OR EXCEPTION IS AVAILABLE FOR A
SECURITY OR A TRANSACTION MEANS THAT THE SECRETARY OF STATE HAS PASSED IN ANY
WAY UPON THE MERITS OR QUALIFICATIONS OF, OR RECOMMENDED OR GIVEN APPROVAL TO,
ANY PERSON, SECURITY, OR TRANSACTION. IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE
MADE, TO ANY PROSPECTIVE PURCHASER, CUSTOMER, OR CLIENT ANY REPRESENTATION
INCONSISTENT WITH THE PROVISIONS OF THIS PARAGRAPH.
Industry and Market Data
In this prospectus we rely on and refer to information and statistics
regarding Apogent's markets and our market share in the sectors in which we
compete. We obtained this information and statistics from various third-party
sources, discussions with our customers and our own internal estimates. We
believe that these sources and estimates are reliable, but have not
independently verified them and cannot guarantee their accuracy or
completeness.
Forward-Looking Statements
This prospectus contains and incorporates by reference forward-looking
statements within the meaning of the Private Securities Litigation Reform Act
of 1995. Words such as "anticipate," "believe," "continue," "estimate,"
"expect," "goal," "objective," "outlook" and similar expressions signify
forward-looking statements. These statements are based upon our expectations at
the time we made them and are subject to risks and uncertainties, many of which
are beyond our control, that could cause actual results to differ materially
from those contemplated in the forward-looking statements. In addition to the
assumptions and other factors referred to specifically in connection with
forward-looking statements, factors that could cause our actual results to
differ materially include the factors described under the caption "Risk
Factors" in this prospectus and under the heading "Forward-Looking Statements"
or "Cautionary Factors" in our SEC filings incorporated by reference into this
prospectus. The risks and uncertainties so identified are not the only ones
facing our company. Additional risks and uncertainties not presently known to
us or that we currently believe
ii
to be immaterial also may adversely affect us. Should any risks and
uncertainties develop into actual events, these developments could have
material adverse effects on our business, financial condition and results of
operations. For these reasons, we caution you not to place undue reliance on
our forward-looking statements.
iii
PROSPECTUS SUMMARY
This prospectus constitutes part of a registration statement on Form S-3
that we have filed with the SEC using a "shelf" registration process. Under
this shelf process, any selling holder may sell any combination of the
securities described in this prospectus in one or more transactions. This
summary highlights selected information contained elsewhere in this prospectus
and does not contain all the information you may need to consider in making
your investment decision. You should read carefully this entire prospectus and
consider the information set forth in "Risk Factors." When we use the terms
"Apogent," "we," "us" or "our" in this prospectus, we mean Apogent Technologies
Inc. and its subsidiaries on a consolidated basis, unless we state or the
context implies otherwise.
On December 11, 2000, we spun off our dental business by way of a pro rata
distribution to our shareholders of all the outstanding common stock and
related preferred stock purchase rights of Sybron Dental Specialties, Inc.
("SDS"). As a result of the spin-off, SDS became an independent public company
operating what was our dental business. We continue to operate our labware and
life sciences, clinical diagnostics, and laboratory equipment businesses, as
described herein. We changed our name from Sybron International Corporation to
Apogent Technologies Inc. after obtaining shareholder approval at our 2001
annual meeting. Apogent's financial statements presented in this prospectus
reflect the dental business among our discontinued operations. The continuing
operations consist of our labware and life sciences, clinical diagnostics, and
laboratory equipment businesses.
Apogent Technologies Inc.
We are a leading developer and manufacturer of thousands of value-added
products for the labware and life sciences, clinical diagnostics, and
laboratory equipment industries. Most of these products are manufactured by us
in approximately 80 facilities. Apogent has over 120 facilities worldwide. Our
customers comprise distributors, pharmaceutical and biotechnology companies,
clinical and research laboratories, and original equipment manufacturers
("OEMs"). Approximately 74% of our net sales are generated from sales within
the U.S. and the remainder are generated internationally, mostly from Europe
and Japan.
We offer a broad mix of products, with over 70% of our net sales consisting
of consumable products ordered on a consistent basis by our customers and end-
users. Most of our products have established brand names, some of which have
been in existence for decades. We focus on developing and manufacturing
products that are industry staples and which are used in the majority of life
sciences and diagnostic and research laboratories. We believe industry
professionals demand our products because of our reputation for quality and the
essential role that our products play in the research and development and
diagnostic efforts of our end-users.
Growth Strategy
Our goal is to consistently grow our worldwide market presence, net sales,
earnings and cash flows. We plan to continue to grow our business through the
implementation of our strategy, key elements of which are to:
. develop profitable new products;
. make strategic acquisitions;
. increase penetration of existing and new customers;
. improve operating efficiency; and
. maintain and enhance our competitive position.
1
The Offering
Issuer.................... Apogent Technologies Inc.
Securities Offered........ Up to $300,000,000 aggregate principal amount of
2.25% Senior Convertible Contingent Debt Securities
("CODES") due October 15, 2021, together with the
shares of common stock into which the CODES may be
converted under certain circumstances.
Maturity Date............. October 15, 2021.
Ranking................... The CODES are senior unsecured obligations of
Apogent Technologies Inc. and rank equal in right
of payment with all existing and future senior
unsecured indebtedness of Apogent Technologies
Inc., including our 8% Senior Notes due 2011. See
"Description of the CODES."
Interest Payment Dates.... April 15 and October 15, beginning April 15, 2002.
Interest Rate............. 2.25% per year, subject to adjustment under
circumstances. See "Description of the CODES--
Interest Rate Adjustments."
Contingent Interest....... We will pay contingent interest to the holders of
CODES during any six-month period from April 15 to
October 14 and from October 15 to April 14,
commencing with the six-month period beginning
April 15, 2002, if the average trading price of a
CODES for the five trading days ending on the
second trading day immediately preceding the
relevant six-month period equals 120% or more of
the principal amount of the CODES.
The "trading price" of the CODES on any date of
determination means the average of the secondary
market bid quotations per CODES obtained by us or
the calculation agent for $10,000,000 principal
amount of the CODES at approximately 3:30 pm, New
York City time, on the determination date from
three independent nationally recognized securities
dealers we select, provided that if at least three
such bids cannot reasonably be obtained by us or
the calculation agent, but two such bids are
obtained, then the average of the two bids shall be
used, and if only one such bid can reasonably be
obtained by us or the calculation agent, this one
bid shall be used. If either we or the calculation
agent cannot reasonably obtain at least one bid for
$10,000,000 principal amount of the CODES from a
nationally recognized securities dealer or in our
reasonable judgment, the bid quotations are not
indicative of the secondary market value of the
CODES, then the trading price of the CODES will
equal (a) the then-applicable conversion rate of
the CODES multiplied by (b) the sale price of our
common stock on the determination date. The initial
purchasers of the CODES advised us that they intend
to make a market in the CODES, but they are not
obligated to do so and may discontinue market
making at any time without notice.
The rate of contingent interest payable in respect
of any six-month period will equal the greater of
(i) a per annum rate equal to 5.0% of
2
our estimated per annum borrowing rate for senior
non-convertible fixed-rate indebtedness with a
maturity date comparable to the CODES and (ii)
0.30% per annum, in each case based on the
outstanding principal amount of the CODES.
Contingent interest will be computed on the basis
of a 360-day year comprised of twelve 30-day
months.
Guarantees................ The CODES are jointly and severally guaranteed by
certain of our domestic subsidiaries as described
in the "Description of the CODES--Subsidiary
Guarantees." The guarantees will be pari passu with
other indebtedness of the guarantors, including
their guarantees of our bank credit facility and
the 8% Senior Notes due 2011.
Conversion Rights......... You may convert your CODES prior to stated maturity
under any of the following circumstances:
. during any quarterly conversion period if the
closing sale price of our common stock for a
period of at least 20 trading days in the period
of 30 consecutive trading days ending on the
first day of such conversion period is more than
120% of the conversion price on that thirtieth
day;
. during the five business day period following any
10 consecutive trading-day period in which the
average of the trading prices (as defined in this
prospectus) for a CODES was less than 105% of the
average sale prices (as defined in this
prospectus) of our common stock multiplied by the
number of shares into which such CODES is then
convertible;
. during any period in which the credit rating
assigned to the CODES by either Moody's or
Standard & Poor's is below Ba2 and BB+,
respectively, in which the credit rating assigned
to the CODES is suspended or withdrawn by either
rating agency or in which neither rating agency
continues to rate the CODES or provide ratings
services or coverage to us;
. if the CODES have been called for redemption; or
. upon the occurrence of specified corporate
transactions described under "Description of the
CODES--Conversion Rights."
For each CODES surrendered for conversion, you
initially will receive 32.7955 shares of our common
stock. This represents an initial conversion price
of approximately $30.49 per share of common stock.
The conversion rate (and the conversion price) may
be adjusted for certain reasons, but will not be
adjusted for accrued interest (including contingent
interest), if any. Upon conversion, you will not
receive any cash payment representing accrued
interest. Instead, accrued interest will be deemed
paid by the common stock received by you on
conversion. CODES called for redemption may be
surrendered for conversion until the close of
business one business day prior to the redemption
date.
Sinking Fund.............. None.
3
Optional Redemption by We may not redeem the CODES prior to October 20,
Apogent................... 2004. We may redeem some or all of the CODES on or
after October 20, 2004 for a price equal to 100% of
the principal amount of the CODES plus any accrued
and unpaid interest (including contingent interest)
to, but excluding, the redemption date, as set
forth under "Description of the CODES--Optional
Redemption by Apogent."
Optional Repurchase Right
of Holders...............
You may require us to repurchase all or a portion
of your CODES on October 20, 2004 and on October
15, 2006, 2011 and 2016 at a repurchase price equal
to 100% of the principal amount of those CODES plus
any accrued and unpaid interest (including
contingent interest) to the date of purchase.
Change of Control
Repurchase Right of
Holders.................. Upon a change of control of Apogent Technologies
Inc., you may require us, subject to certain
conditions, to repurchase all or a portion of your
CODES. We will pay a repurchase price equal to 100%
of the principal amount of the CODES plus any
accrued and unpaid interest (including contingent
interest) to, but excluding, the repurchase date.
See "Description of the CODES--Repurchase at Option
of Holders--Change of Control Put."
Form, Denomination and
Registration.............
The CODES have been issued in fully registered
form, in denominations of $1,000 and are
represented by one or more global securities,
deposited with the trustee as custodian for The
Depository Trust Company ("DTC") and registered in
the name of Cede & Co., DTC's nominee. Beneficial
interests in the global securities will be shown
on, and any transfers will be effected only
through, records maintained by DTC and its
participants. See "Description of the CODES--Form,
Denomination and Registration."
Use of Proceeds........... We will not receive any of the proceeds from the
sale by any selling holder of the CODES or shares
of common stock offered under this prospectus.
Registration Rights....... This prospectus is part of a shelf registration
statement that we and the guarantors agreed to file
with the SEC. In connection with the initial
private placement of the CODES, we agreed to keep
the shelf registration statement effective until
the earliest of:
. two years after the last date of original
issuance of any of the CODES (i.e., until October
10, 2003);
. the date when the holders of the CODES and the
common stock issuable upon conversion of the
CODES are able to sell all these securities
immediately pursuant to Rule 144(k) under the
Securities Act; and
. the date when all of the CODES, the guarantees
and the common stock into which the CODES are
convertible are registered under a
4
shelf registration statement and sold in
accordance with it, provided that selling holders
must complete and deliver in a timely manner the
selling securityholder election and questionnaire
described in this prospectus.
See "Description of the CODES--Registration
Rights."
Absence of a Public
Market for the CODES.....
The CODES issued in the initial private placement
are eligible for trading in the PORTAL market.
However, the CODES sold using this prospectus will
no longer be eligible for trading in the PORTAL
market. We cannot assure you that any active or
liquid market will develop or will be maintained
for the CODES.
New York Stock Exchange
Symbol For Our Common
Stock.................... Our common stock is traded on the New York Stock
Exchange under the symbol "AOT."
Risk Factors
You should read the "Risk Factors" section to understand the risks
associated with an investment in the CODES.
5
RISK FACTORS
You should carefully consider the following factors and other information
contained and incorporated by reference in this prospectus before deciding to
purchase the CODES or the common stock into which they may be converted. Any
of these risks could materially adversely affect our business, financial
condition, results of operations and prospects, which could in turn materially
adversely affect the price of the CODES and the common stock issuable upon
conversion of the CODES.
Risks Relating to Apogent
Our holding company structure increases financial risks.
We are organized as a holding company, with all of our net sales generated
through our subsidiaries. Although we expect that our significant present and
future U.S. subsidiaries will fully and unconditionally guarantee any debt
securities issued pursuant to this prospectus, our foreign subsidiaries own a
significant portion of our consolidated assets and are a significant part of
our operations. Approximately 18% of our net sales and 7% of our operating
cash flow for 2001 were from foreign, non-guarantor subsidiaries.
Consequently, our operating cash flow and ability to service indebtedness and
stock dividends depend in part upon the operating cash flow of our non-
guarantor subsidiaries and the payment of funds by them to us in the form of
loans, dividends or otherwise. Their ability to pay dividends and make loans,
advances and other payments to us depends upon statutory or other contractual
restrictions, which may include requirements to maintain minimum levels of
working capital and other assets.
Our international operations pose currency and other risks.
We have significant operations outside the United States, where a
significant portion of our revenue is generated. We are therefore subject to
risk factors affecting our international operations, including relevant
foreign currency exchange rates, which can affect the cost of our products or
the ability to sell our products in foreign markets, and the value in U.S.
dollars of sales made in foreign currencies. Our sales were reduced by $10.1
million and $6 million in 2001 and 2000, respectively, by the impact of
currency fluctuations. Other factors include our ability to obtain effective
hedges against fluctuations in currency exchange rates; foreign trade,
monetary and fiscal policies; laws, regulations and other activities of
foreign governments, agencies and similar organizations; risks associated with
having major manufacturing facilities located in countries that have
historically been less stable than the United States in several respects,
including fiscal and political stability; and risks associated with an
economic downturn in other countries. In addition, world events can increase
the volatility of the currency markets, and such volatility could affect our
financial results.
Our failure to keep pace with the technological demands of our customers or
with the products and services offered by our competitors could significantly
harm our business.
Some of the industries served by our products are characterized by rapid
technological changes and new product introductions. Some of our competitors
may invest more heavily in research or product development than we do.
Successful new product offerings depend upon a number of factors, including
our ability to:
. accurately anticipate customer needs;
. innovate and develop new technologies and applications;
. successfully commercialize new products in a timely manner;
. price our products competitively and manufacture and deliver our products
in sufficient volumes and on time; and
. differentiate our offerings from those of our competitors.
If we do not introduce new products in a timely manner and make enhancements
to meet the changing needs of our customers, some of our products could become
obsolete over time, in which case our customer relationships, revenue, and
operating results would suffer.
6
Our operating results may suffer if the industries into which we sell our
products are in downward cycles.
Some of the industries and markets into which we sell our products are
cyclical. Any significant downturn in our customers' markets or in general
economic conditions could result in reduced demand for our products and could
harm our business.
Future acquisitions may not be available or may create transitional
challenges.
A significant portion of our growth over the past several years has been
achieved through our acquisition program. Our rate of continued growth is
therefore subject to factors affecting our ability to continue pursuing our
current acquisition strategy and to be successful with that strategy. These
factors include our ability to raise capital beyond the capacity of our
existing credit facilities or to use our stock for acquisitions, the cost of
the capital required to effect our acquisition strategy, the availability of
suitable acquisition candidates at reasonable prices, competition for
appropriate acquisition candidates, our ability to realize the synergies
expected to result from acquisitions, our ability to retain key personnel in
connection with acquisitions and the ability of our existing personnel to
efficiently handle increased transitional responsibilities resulting from
acquisitions.
We may incur restructuring or impairment charges that would reduce our
earnings.
We have in the past and may in the future restructure some of our
operations. In such circumstances, we may take actions that would result in a
charge and reduce our earnings. These restructurings have or may be undertaken
to realign our subsidiaries, eliminate duplicative functions, rationalize our
operating facilities and products and reduce our staff. These restructurings
may be implemented to improve the operations of recently acquired subsidiaries
as well as subsidiaries that have been part of our operations for many years.
Our historical financial results include special charges related to
restructuring activities of approximately $11.3 million and $8.5 million in
fiscal years 2000 and 1998, respectively. As a result of adjustments to prior
restructuring reserves, we incurred special charges of $0.6 million and $0.3
million for 2001 and 1999, respectively. An additional restructuring charge
may be required in fiscal year 2002 to further rationalize our operating
facilities and products; however, no conclusions have been reached regarding
the necessity, timing or magnitude of a charge. Additionally, on October 1,
2001 we adopted SFAS 142, "Goodwill and Other Intangible Assets," which
requires that goodwill and intangible assets that have an indefinite useful
life be tested at least annually for impairment. This will require us to
perform a transitional assessment for possible impairment as of October 1,
2001. We have not quantified the impact of adopting this standard.
We rely heavily upon sales to key distributors and original equipment
manufacturers ("OEMs"), and could lose sales if any of them stop doing
business with us.
Our three most significant distributors represent a significant portion of
our revenues. For example, sales to Fisher Scientific, VWR Scientific, and
Allegiance Healthcare Corporation accounted for approximately 12%, 10% and 6%
of revenues in fiscal 2001, respectively. Our reliance on major independent
distributors for a substantial portion of our sales subjects our sales
performance to volatility in demand from distributors. We can experience
volatility when distributors merge or consolidate, when inventories are not
managed to end-user demand, or when distributors experience softness in their
sales. We rely primarily upon the long-standing and mutually beneficial nature
of our relationships with our key distributors, rather than on contractual
rights, to protect these relationships. Volatility in end-user demand can also
arise with large OEM customers to whom we sell directly. The loss of a
substantial contract could adversely affect our business. Sales to our OEM
customers are sometimes unpredictable and wide variances sometimes occur
quarter to quarter.
We could be injured by disruptions of our manufacturing operations.
We rely upon our manufacturing operations to produce most of the products
we sell. Any significant disruption of those operations for any reason, such
as labor unrest, power interruptions, fire, war, or other force majuere, could
adversely affect our sales and customer relationships and therefore adversely
affect the value of
7
our securities. In particular, the supply of white glass, which is used in our
clinical and industrial segment's worldwide manufacturing operations, comes
solely from our glass manufacturing facility in Switzerland. Risks include
delays encountered in connection with the periodic rebuilding of the sheet
glass furnace or furnace malfunctions. Although most of our raw materials are
available from a number of potential suppliers, our operations also depend
upon our ability to obtain raw materials at reasonable prices.
The success of many of our products depends on the effectiveness of our
patents, trademarks and licenses to defend our intellectual property rights.
Our success with many of our products depends, in part, on our ability to
protect our current and future innovative products and to defend our
intellectual property rights. Our subsidiaries' products are sold under a
variety of trademarks and trade names. They own or license all of the
trademarks and trade names we believe to be material to the operation of their
businesses. We also rely upon a combination of non-disclosure and other
contractual agreements and trade secret, copyright, patent and trademark laws
to protect our intellectual property rights. Disputes may arise concerning the
ownership of intellectual property or the applicability of confidentiality
agreements. If we fail to adequately protect our intellectual property,
competitors may manufacture and market products similar to ours.
We could be hurt by product liability claims or other litigation.
Our business is subject to the risks of claims involving our products and
other legal and administrative proceedings, including the expense of
investigating, litigating and settling any claims. Although we currently
maintain insurance against some of these risks, uninsured losses could occur.
Our business is subject to regulatory risks.
Our ability to continue manufacturing and selling those of our products
that are subject to regulation by the United States Food and Drug
Administration or other domestic or foreign governments or agencies is subject
to a number of risks. In the future, some of our products may be affected by
the passage of stricter laws or regulations, reclassification of our products
into categories subject to more stringent requirements, or the withdrawal of
approvals needed to sell one or more of our products.
Some of our products are affected by general levels of insurance and
reimbursement.
The demand for and pricing of some of our products can be affected by
changing levels of public and private health care budgets, including
reimbursement by private or governmental insurance programs.
We could be harmed by the loss of key management.
The success of our operations depends in significant part upon the
experience and expertise of our management team, both within Apogent and in
our operating subsidiaries. Any loss of these key personnel could harm our
business.
Our recent separation from SDS poses a potential tax sharing and
indemnification risk.
We recently spun off the dental businesses now owned by SDS. We and SDS
each agreed to indemnify the other with respect to certain indebtedness,
liabilities and obligations, including potential tax liabilities if future
transactions change the tax treatment of the spin-off. Our ability to collect
on these indemnities from SDS, if applicable, depends upon the future
financial strength of SDS.
We sometimes experience quarterly variations in our operating results.
Our business is subject to quarterly variations in operating results caused
by a number of factors, including business and industry conditions, timing of
acquisitions, distribution and OEM customer issues, and other factors
discussed herein or in our other public filings. All of these factors make it
difficult to predict operating results for any particular period.
8
Other risks may arise.
We may be subject to risks arising from other business and investment
considerations that may be disclosed from time to time in our Securities and
Exchange Commission filings or in other publicly available written documents.
Risks Relating to Investment in the CODES and Common Stock
You should consider the United States federal income tax consequences of
owning CODES.
We and each holder agree in the indenture to treat the CODES as "contingent
payment debt instruments" subject to the contingent payment debt regulations.
As a result, a holder will be required to include amounts in income, as
original issue discount, in advance of cash such holder receives on a CODES,
and to accrue interest on a constant yield to maturity basis at a rate
comparable to the rate at which we would borrow in a noncontingent,
nonconvertible borrowing (5.90%), even though the CODES will have a
significantly lower yield to maturity. A holder will recognize taxable income
significantly in excess of cash received while the CODES are outstanding. In
addition, under the indenture, a holder will recognize ordinary income, if any,
upon a sale, exchange, conversion or redemption of the CODES at a gain. See
"Certain United States Federal Income Tax Considerations."
The CODES do not contain certain restrictive covenants, and there is limited
protection in the event of a change of control.
The indenture under which the CODES were issued does not contain restrictive
covenants that would protect you from several kinds of transactions that may
adversely affect you as a holder of a CODES. In particular, the indenture does
not contain covenants that limit our ability to pay dividends or make
distributions on or redeem our capital stock or limit our ability to incur
additional indebtedness and, therefore, protect you in the event of a highly
leveraged transaction or other similar transaction. In addition, the
requirement that we offer to repurchase the CODES upon a change of control is
limited to the transactions specified in the definition of a "change of
control" under "Description of CODES--Repurchase at Option of Holders--Change
of Control Put." Accordingly, we could enter into certain transactions, such as
acquisitions, refinancings or a recapitalization, that could affect our capital
structure and the value of our common stock but would not constitute a change
of control.
Our ability to repurchase the CODES with cash upon a change of control may be
limited.
In certain circumstances involving a change of control of Apogent, you may
require us to repurchase all or a portion of your CODES to the extent set forth
in this prospectus. If a change in control were to occur, we cannot assure you
that, if required, we will have sufficient cash or other financial resources at
that time or would be able to arrange financing to pay the repurchase price of
the CODES in cash. Our ability to repurchase the CODES in that event may be
limited by law, by the indenture, by the terms of other agreements relating to
our senior debt and by indebtedness and agreements that we may enter into in
the future which may replace, supplement or amend our existing or future debt.
If a change in control occurs at a time when we are prohibited from
repurchasing or redeeming the CODES, we could seek the consent of lenders to
repurchase the CODES or could attempt to refinance the borrowings that contain
this prohibition. If we do not obtain a consent or refinance these borrowings,
we could remain prohibited from repurchasing the CODES. Our failure to
repurchase the CODES would constitute an event of default under the indenture
under which we issued the CODES, which might constitute a default under the
terms of our other indebtedness at that time. In these circumstances, the
subordination provisions in the indenture would likely restrict payments to you
before the other debt is repaid in full.
9
There may not be a liquid market for the CODES, and you may not be able to
sell your CODES at attractive prices or at all.
The CODES are a new issue of securities for which there is currently no
public trading market. We do not intend to apply for listing of the CODES on
any securities exchange. Although the initial purchasers have advised us that
they currently intend to make a market in the CODES, they are not obligated to
do so and may discontinue their market-making activities at any time without
notice. The CODES issued in the initial private placement are eligible for
trading in the PORTAL market, but the CODES sold using this prospectus will no
longer be eligible for trading in the PORTAL market. We cannot predict whether
an active trading market for the CODES will develop or will be sustained. If an
active market for the CODES fails to develop or be sustained, the trading price
of the CODES could fall. Even if an active trading market were to develop, the
CODES could trade at prices that may be lower than the initial offering price.
The trading price of the CODES will depend on many factors, including:
. prevailing interest rates and interest rate volatility;
. the markets for similar securities;
. our financial condition, results of operations and prospects;
. the publication of earnings estimates or other research reports and
speculation in the press or investment community;
. changes in our industry and competition; and
. general market and economic conditions.
As a result, we cannot assure you that you will be able to sell the CODES at
attractive prices or at all.
A downgrade, suspension or withdrawal of the rating assigned by a rating
agency to the CODES, if any, could cause the liquidity or market value of the
CODES to decline significantly.
We have received ratings of the CODES by Standard & Poor's and Moody's. We
cannot assure you that the ratings so assigned will remain for any given period
of time or that a rating will not be lowered or withdrawn entirely by a rating
agency if in that rating agency's judgment future circumstances relating to the
basis of the rating, such as adverse changes in our business, so warrant.
The market price for our common stock may be highly volatile.
The market price for our common stock may be highly volatile. There may be a
significant impact on the market price of our common stock due to a variety of
factors, including:
. prevailing interest rates and interest rate volatility;
. the market for similar securities;
. our financial condition, results of operations and prospects;
. any future issuances of our common stock, which may include primary
offerings for cash, issuances in connection with business acquisitions,
and the grant or exercise of stock options from time to time;
. the publication of earnings estimates or other research reports and
speculation in the press or investment community;
. changes in our industry and competitors;
. any outbreak or escalation of hostilities; and
. general market and economic conditions.
In addition, the stock market in general, and the New York Stock Exchange in
particular, have experienced extreme price and volume fluctuations that have
often been unrelated or disproportionate to the
10
operating performance of these companies. Broad market and industry factors
may negatively affect the market price of our common stock, regardless of
actual operating performance. In the past, following periods of volatility in
the market price of a company's securities, securities class action litigation
has often been instituted against companies. This type of litigation, if
instituted, could result in substantial costs and a diversion of management's
attention and resources, which would harm our business.
Volatility in the market price of our common stock may make it more
difficult for you to sell the common stock you receive on conversion of the
CODES. In addition, because the CODES will be convertible into our common
stock, their value will likely also be affected by the factors summarized
above.
We are restricted by the terms of our outstanding senior debt, which could
adversely affect us and increase your credit risk.
The indenture relating to our outstanding senior notes and our revolving
credit agreement include a number of significant financial and operating
restrictions, which may prevent us from capitalizing on business opportunities
and taking some corporate actions. These include, among other things,
restrictions on our ability to:
. pay dividends or make distributions in respect of our capital stock or to
make certain other restricted payments;
. incur indebtedness;
. create liens;
. make loans or investments;
. enter into sale and leaseback transactions;
. agree to payment restrictions affecting our restricted subsidiaries;
. consolidate, merge, sell or lease all or substantially all of our assets;
and
. enter into transactions with affiliates.
In addition, our revolving credit facility contains financial covenants
that, among other things, require us to maintain a minimum net worth and a
minimum interest coverage ratio and that impose a maximum leverage ratio. Our
ability to comply with these ratios and limits may be affected by events
beyond our control, and a breach could result in an acceleration of our
obligations, which could have a material adverse effect on our business,
financial condition, and results of operations and prospects.
The CODES are unsecured, and therefore are effectively subordinated to any
secured debt, and the subsidiary guarantees of the CODES are unsecured and
effectively subordinated to the secured debt of the guarantors.
The CODES and subsidiary guarantees are not secured by any of our assets or
those of our subsidiaries. As a result, the CODES and guarantees are
effectively subordinated to any secured debt we may incur and to the secured
debt of any guarantor subsidiaries to the extent of the value of the assets
securing such debt. In any liquidation, dissolution, bankruptcy or other
similar proceeding, the holders of our secured debt or the debt of any
guarantor subsidiaries may assert rights against the secured assets in order
to receive full payment of their debt before the assets may be used to pay the
holders of the CODES.
The subsidiary guarantees may raise fraudulent transfer issues, which could
impair the enforceability of the subsidiary guarantees.
Under U.S. bankruptcy law and comparable provisions of state fraudulent
transfer laws, a court could subordinate or void any subsidiary guarantee if
it found that the guarantee was incurred with actual intent to
11
hinder, delay or defraud creditors or the guarantor did not receive fair
consideration or reasonably equivalent value for the guarantee and the
guarantor:
. was insolvent or was rendered insolvent because of the guarantee and the
application of proceeds of the CODES or the guarantee;
. was engaged in a business or transaction for which its remaining assets
constituted unreasonably small capital to carry on its business;
. intended to incur, or believed that it would incur, debts beyond its
ability to pay at maturity; or
. was a defendant in an action for money damages, or had a judgment for
money damages docketed against it, if, in either case, after final
judgment the judgment is unsatisfied.
We cannot be sure as to the standard that a court would use to determine
whether or not the guarantors were solvent at the relevant time, or that the
issuance of the guarantees would not be voided or the guarantees would not be
subordinated to the guarantors' other debt. A guarantee could also be subject
to the claim that, because the guarantee was incurred for the benefit of
Apogent, and only indirectly for the benefit of the guarantor, the obligations
of the applicable guarantor were incurred for less than fair consideration. If
a court voided a guarantee as a result of fraudulent conveyance, or held it
unenforceable for any other reason, securityholders would cease to have a
claim against the guarantor and would be solely creditors of Apogent and any
other guarantors.
From time to time the guarantors of the CODES may differ from those under our
other existing senior debt.
While the guarantees of the CODES are pari passu with the guarantees of our
8% Senior Notes due 2011 ("2011 Senior Notes") and our bank credit facility,
the guarantors under the CODES may from time to time not include all of the
guarantors under such other existing senior debt. In the event of a
bankruptcy, liquidation or reorganization of any of the non-guarantor
subsidiaries, holders of their indebtedness and their trade creditors will
generally be entitled to payment of their claims from the assets of those
subsidiaries before any assets of the non-guarantor subsidiaries are made
available for distribution to Apogent.
Our preferred stock purchase rights, certain provisions of Wisconsin law and
our articles of incorporation and bylaws contain certain provisions that
could make a takeover of Apogent more difficult.
Our preferred stock purchase rights, certain provisions of Wisconsin law
and our articles of incorporation and bylaws could have the effect of delaying
or preventing a third party from acquiring us, even if a change in control
would be beneficial to our shareholders. In addition to our preferred stock
purchase rights, these provisions of our articles of incorporation and bylaws
include:
. providing for a classified board of directors with staggered, three-year
terms;
. permitting removal of directors only for cause;
. providing that vacancies on the board of directors will be filled by the
remaining directors then in office; and
. requiring advance notice for shareholder proposals and director nominees.
In addition, the Wisconsin control share acquisition statute and
Wisconsin's "fair price" and "business combination" provisions limit the
ability of an acquiring person to engage in certain transactions or to
exercise the full voting power of acquired shares of a "resident domestic
corporation" under certain circumstances. It is not clear whether Apogent will
be considered a "resident domestic corporation" for these purposes. These
provisions and other provisions of Wisconsin law could make it more difficult
for a third party to acquire us, even if doing so would benefit our
shareholders. As a result, offers to acquire Apogent which represent a premium
over the available market price of our common stock may be withdrawn or
otherwise fail to be realized.
12
USE OF PROCEEDS
We will not receive any proceeds from the sale of the CODES or the common
stock into which the CODES may be convertible. The selling holders will receive
all of the net proceeds from the sale of the CODES and the common stock into
which the CODES may be convertible that they, respectively, own.
DIVIDEND HISTORY AND POLICY
We have never declared or paid any cash dividends on our capital stock. We
currently intend to retain any future earnings to finance the growth and
development of our business and do not anticipate paying any cash dividends in
the foreseeable future. Any future decision to pay cash dividends will be at
the discretion of our board of directors and will depend upon, among other
factors, our earnings, financial condition and other requirements.
PRICE RANGE OF COMMON STOCK
Our common stock trades on the New York Stock Exchange under the symbol
"AOT." As of December 7, 2001, there were 106,129,455 shares of our common
stock issued and outstanding held by 365 shareholders of record. We list in the
table below closing information on the high and low sales prices for our common
stock during the periods indicated as reported on the New York Stock Exchange.
Because transactions before December 11, 2000 reflect prices prior to our spin-
off of SDS, they may not be indicative of the value of Apogent's ongoing
businesses during those periods.
Price Range Of
Common Stock
---------------
Fiscal Year and Quarter High Low
- ----------------------- ------- -------
(in dollars)
2000
1st Quarter.................................................. $27.813 $20.668
2nd Quarter.................................................. 29.313 21.375
3rd Quarter.................................................. 33.063 16.375
4th Quarter.................................................. 25.875 19.063
2001
1st Quarter through December 11, 2000*....................... $29.125 $18.952
1st Quarter beginning December 12, 2000*..................... 24.438 18.625
2nd Quarter.................................................. 22.050 17.875
3rd Quarter.................................................. 25.800 18.950
4th Quarter.................................................. 25.400 21.350
2002
1st Quarter through December 19, 2001........................ $25.95 $22.96
- --------
* Our spin-off of SDS was completed on December 11, 2000, and our common stock
began to trade regularly following the spin-off on December 12, 2000.
For the last reported sales price for our common stock on a recent date, see
the cover page of this prospectus.
13
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our historical ratio of earnings to fixed
charges for Apogent for the periods indicated:
Year ended September 30,
------------------------
2001 2000 1999 1998 1997
---- ---- ---- ---- ----
Ratio of earnings to fixed charges..................... 4.4 3.8 4.0 3.5 3.8
For this purpose, "earnings" consists of income from continuing operations
before income taxes and fixed charges (exclusive of capitalized, amortized
premiums related to indebtedness, an estimate of interest within rental expense
and preferred stock dividends). "Fixed charges" consists of interest expense
and capitalized, amortized premiums related to indebtedness and an estimate of
interest within rental expense. Apogent did not pay any preferred stock
dividends during the periods indicated.
DESCRIPTION OF THE CODES
We issued the CODES under an indenture, dated October 10, 2001, between us,
the guarantors and The Bank of New York, as trustee. The terms of the CODES
include those provided in the indenture and those provided in the registration
rights agreement, which we entered into with Lehman Brothers Inc., Credit
Suisse First Boston Corporation, Banc of America Securities LLC, ABN AMRO
Rothschild LLC and UBS Warburg LLC, the initial purchasers of the CODES.
The following description is only a summary of the material provisions of
the CODES, the indenture and the registration rights agreement. We urge you to
read these documents in their entirety because they, and not this description,
define your rights as holders of the CODES. You may request copies of these
documents at our address set forth under the caption "About This Prospectus."
When we refer to Apogent in this section, we refer only to Apogent
Technologies Inc., a Wisconsin corporation, and not its subsidiaries.
Brief Description of the CODES
The CODES:
. are limited to $300,000,000 aggregate principal amount, all of which were
issued on October 10, 2001;
. bear interest at a rate of 2.25% per year, subject to interest rate
adjustments as described below;
. bear contingent interest in the circumstances described under "--
Contingent Interest;"
. are general unsecured obligations, ranking equally with all of our other
unsecured senior indebtedness and senior in right of payment to any
subordinated indebtedness; as indebtedness of Apogent, the CODES are
effectively subordinated to all indebtedness and liabilities of our
subsidiaries, except for indebtedness of the guarantors;
. are convertible into our common stock at a conversion price of
approximately $30.49 per share, subject to adjustment as described under
"--Conversion Rights," in the following circumstances:
. if the sale price of our common stock is above 120% of the conversion
price measured over a specified number of trading days;
. if the ratio of the trading price of the CODES to the conversion value
of the CODES is below 105% measured over a specified number of trading
days;
. during any period in which the credit ratings assigned to the CODES by
Moody's Investors Service, Inc., or Moody's, is lower than "Ba2" or by
Standard & Poor's Rating Services, or Standard
14
and Poor's, is lower than "BB+", in which the credit rating assigned to
the CODES is suspended or withdrawn by either rating agency or in which
neither agency continues to rate the CODES or provide ratings services
or coverage to Apogent;
. if the CODES have been called for redemption; and
. upon the occurrence of specified corporate transactions;
. are redeemable at our option in whole or in part beginning on October 20,
2004 upon the terms and for a price equal to 100% of the principal amount
of the CODES plus any accrued and unpaid interest (including contingent
interest) as set forth under "--Optional Redemption by Apogent;"
. may be repurchased by us, at your option, on October 20, 2004 and on
October 15, 2006, 2011 and 2016 or if a change of control occurs; and
. will be due on October 15, 2021, unless earlier converted, redeemed by us
at our option or repurchased by us at your option.
The indenture does not contain any financial covenants and does not
restrict us or any of the guarantors from paying dividends, incurring
additional senior debt or any other indebtedness or issuing or repurchasing
our other securities. The indenture also will not protect you in the event of
a highly leveraged transaction or a change in control of Apogent except to the
extent described under "--Repurchase at Option of Holders --Change of Control
Put" below.
Under the indenture, we have agreed, and by acceptance of a beneficial
interest in the CODES each beneficial owner of the CODES will be deemed to
have agreed, among other things, for United States federal income tax
purposes, to treat the CODES as indebtedness that is subject to the
regulations governing contingent payment debt instruments, and, for purposes
of those regulations, to treat the fair market value of any stock received
upon any conversion of the CODES as a contingent payment, and the discussion
herein assumes that such treatment is correct. However, the characterization
of instruments such as the CODES and the application of such regulations is
uncertain in several respects. See "Certain United States Federal Income Tax
Considerations--Classification of the CODES."
No sinking fund is provided for the CODES. The CODES will not be subject to
defeasance. The CODES will be issued only in registered form in denominations
of $1,000 and any integral multiple of $1,000 above that amount. No service
charge will be made for any registration of transfer or exchange of CODES, but
we may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
You may present definitive CODES for conversion, registration of transfer
and exchange, without service charge, at our office or agency in New York
City, which initially is the office or agency of the trustee in New York City.
For information regarding conversion, registration of transfer and exchange of
global securities, see "--Form, Denomination and Registration."
Brief Description of the Guarantees
The CODES have been and will be jointly and severally guaranteed by certain
of Apogent's existing and future U.S. subsidiaries.
The guarantees of the CODES:
. are and will be general obligations of each guarantor;
. rank equally with the obligations of the guarantors under their
guarantees of Apogent's bank credit facility and its outstanding 2011
Senior Notes; and
. terminate with respect to each guarantor upon the termination of the
obligations of such guarantor under the Credit Agreement, dated December
1, 2000, between Apogent, the guarantors and The Chase
15
Manhattan Bank, as Administrative Agent, as amended, supplemented or
modified from time to time (the "Credit Agreement").
Interest
The CODES bear interest from October 10, 2001 at the rate of 2.25% per
year, subject to adjustment upon the occurrence of a reset transaction. See
"--Interest Rate Adjustments" below. We will also pay contingent interest on
the CODES in the circumstances described under "--Contingent Interest." We
will pay interest semiannually on April 15 and October 15 of each year to the
holders of record at the close of business on the preceding April 1 and
October 1, respectively, beginning April 15, 2002. There are two exceptions to
the preceding sentence:
. In general, we will not pay interest accrued and unpaid on any CODES that
is converted into our common stock. See "--Conversion Rights." If a
holder of CODES converts after a record date for an interest payment but
prior to the corresponding interest payment date, it will receive
interest accrued and paid on such CODES on the interest payment date,
notwithstanding the conversion of such CODES prior to such interest
payment date, because such holder will have been the holder of record on
the corresponding record date. However, at the time such holder
surrenders such CODES for conversion, it must pay us an amount equal to
the interest that has accrued and will be paid on the interest payment
date. The preceding sentence does not apply, however, to a holder that
converts, after a record date for an interest payment date but prior to
the corresponding interest payment date, CODES that we call for
redemption prior to such conversion on a redemption date that is on or
prior to the third business day after such interest payment date.
. We will pay interest to a person other than the holder of record on the
record date if we redeem the CODES on a date that is after the record
date and prior to the corresponding interest payment date. In this
instance, we will pay interest accrued and unpaid on the CODES being
redeemed to, but not including, the redemption date to the same person to
whom we will pay the principal of such CODES.
Except as provided below, we will pay interest on:
. the global securities to DTC in immediately available funds;
. the definitive CODES having an aggregate principal amount of $5,000,000
or less by check mailed to the holders of the CODES; and
. the definitive CODES having an aggregate principal amount of more than
$5,000,000 by wire transfer in immediately available funds if requested
by the holder of those CODES.
At maturity, we will pay interest on the definitive CODES at our office or
agency in New York City, which initially is the office or agency of the
trustee in New York City.
We will pay principal on:
. the global securities to DTC in immediately available funds; and
. the definitive CODES at our office or agency in New York City, which
initially will be the office or agency of the trustee in New York City.
Interest generally will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
Interest Rate Adjustments
If a reset transaction occurs, the interest rate will be adjusted to equal
the adjusted interest rate from the effective date of such reset transaction
to, but not including, the effective date of any succeeding reset transaction.
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A "reset transaction" means:
. a merger, consolidation or statutory share exchange to which the entity
that is the issuer of the common stock into which the CODES are then
convertible is a party;
. a sale of all or substantially all the assets of that entity;
. a recapitalization of that common stock; or
. a distribution described in the fourth bullet point of the sixth
paragraph under "--Conversion Rights" below,
after the effective date of which transaction or distribution the CODES would
be convertible into:
. shares of an entity the common stock of which had a dividend yield for
the four fiscal quarters of such entity immediately preceding the public
announcement of the transaction or distribution that was more than 2.5%
higher than the dividend yield on our common stock (or other common stock
then issuable upon conversion of the CODES) for the four fiscal quarters
preceding the public announcement of the transaction or distribution; or
. shares of an entity that announces a dividend policy prior to the
effective date of the transaction or distribution which policy, if
implemented, would result in a dividend yield on that entity's common
stock for the next four fiscal quarters that would result in such a 2.5%
increase.
The "adjusted interest rate" with respect to any reset transaction will be
the rate per year that is the arithmetic average of the rates quoted by two
dealers engaged in the trading of convertible securities selected by us or our
successor as the rate at which interest should accrue so that the fair market
value, expressed in dollars, of a CODES immediately after the later of:
. the public announcement of the reset transaction; or
. the public announcement of a change in dividend policy in connection with
the reset transaction,
will equal the average trading price (as described below under "--Conversion
Rights--Conversion Upon Satisfaction of Market Price Conditions") of a CODES
for the 20 trading days preceding the date of public announcement of the reset
transaction. However, the adjusted interest rate will not be less than 2.25%
per year.
For purposes of the definition of reset transaction, the dividend yield on
any security for any period means the dividends paid or proposed to be paid
pursuant to an announced dividend policy on the security for that period
divided by, if with respect to dividends paid on that security, the average
sale price (as defined below) of the security during that period and, if with
respect to dividends proposed to be paid on the security, the closing price of
such security on the effective date of the related reset transaction.
The "sale price" of a security on any date of determination means:
. the closing sale price (or, if no closing sale price is reported, the
last reported sale price) of a security (regular way) on the New York
Stock Exchange on that date;
. if that security is not listed on the New York Stock Exchange on that
date, the closing sale price as reported in the composite transactions
for the principal U.S. securities exchange on which that security is
listed;
. if that security is not so listed on a U.S. national or regional
securities exchange, the closing sale price as reported by the Nasdaq
National Market;
. if that security is not so reported, the last price quoted by Interactive
Data Corporation for that security or, if Interactive Data Corporation is
not quoting such price, a similar quotation service selected by us; or
17
. if that security is not so quoted, the average of the mid-point of the
last bid and ask prices for that security from at least two dealers
recognized as market-makers for that security.
Contingent Interest
In addition to the interest we will pay as described under "--Interest" and
"--Interest Rate Adjustments," we will pay contingent interest, subject to the
accrual and record date provisions described above, to the holders of CODES
during the six-month periods from April 15 to October 14 and from October 15 to
April 14, as appropriate, commencing with the six-month period beginning April
15, 2002, if the average trading price, as described below under "--Conversion
Rights--Conversion Upon Satisfaction of Market Price Conditions," of a CODES
for the five trading days ending on the second trading day immediately
preceding the beginning of the relevant six-month period equals 120% or more of
the principal amount of CODES.
The rate of contingent interest payable in respect of any six-month period
will equal the greater of (i) a per annum rate equal to 5.0% of our estimated
per annum borrowing rate for senior non-convertible fixed-rate indebtedness
with a maturity date comparable to the CODES and (ii) 0.30% per annum, in each
case based on the outstanding principal amount of the CODES. Contingent
interest will be computed on the basis of a 360-day year comprised of twelve
30-day months.
Upon determination that holders of CODES will be entitled to receive
contingent interest during any relevant six-month period, on or prior to the
start of the relevant six-month period, we will issue a press release and
publish information with respect to any contingent interest on our web site.
We will pay contingent interest, if any, in the same manner as we will pay
interest described above under "--Interest," and your obligations in respect of
the payment of contingent interest in connection with the conversion of any
CODES will also be the same as described above under "--Interest."
Conversion Rights
General
You may convert any outstanding CODES (or portions of outstanding CODES)
into our common stock, initially at the conversion price of approximately
$30.49 per share (equal to a conversion rate of 32.7955 shares per $1,000
principal amount of CODES) under the circumstances summarized below. The
conversion price is, however, subject to adjustment as described below. We will
not issue fractional shares of common stock upon conversion of CODES. Instead,
we will pay a cash adjustment based upon the closing sale price of our common
stock on the business day immediately preceding the conversion date. You may
convert CODES only in denominations of $1,000 and whole multiples of $1,000.
Holders may surrender CODES for conversion into our common stock prior to
the stated maturity only under the following circumstances:
. during any conversion period, as described below, if the sale price of
our common stock (as described above under "Interest Rate Adjustments")
for at least 20 trading days in the 30 consecutive trading-day period
ending on the first day of the conversion period was more than 120% of
the conversion price on that thirtieth trading day;
. during the five business-day period following any 10 consecutive trading-
day period in which the average of the trading prices (as described below
under "--Conversion Rights--Conversion Upon Satisfaction of Market Price
Conditions") for the CODES for that 10 trading-day period was less than
105% of the average conversion value, as described below, for the CODES
during that period;
. during any period in which the credit rating assigned to the CODES by
either Moody's or Standard & Poor's is lower than Ba2 or BB+,
respectively, in which the credit rating assigned to the CODES is
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suspended or withdrawn by either rating agency or in which neither rating
agency continues to rate the CODES or provide ratings services or coverage
to Apogent;
. if we have called the CODES for redemption; or
. upon the occurrence of the corporate transactions summarized below.
If you have exercised your right to require us to repurchase your CODES as
described under "--Repurchase at Option of Holders," you may convert your
CODES into our common stock only if you withdraw your notice of exercise and
convert your CODES prior to the close of business on the business day
immediately preceding the applicable repurchase date.
Conversion Upon Satisfaction of Market Price Conditions
A holder may convert its CODES into our common stock during any conversion
period if the sale price of our common stock for at least 20 consecutive
trading days in the 30 trading-day period ending on the first day of the
conversion period exceeds 120% of the conversion price on that thirtieth
trading day. A conversion period will be the period from and including the
thirtieth trading day in a fiscal quarter to, but not including, the thirtieth
trading day in the immediately following fiscal quarter.
A holder also may convert its CODES into our common stock during the five
business-day period following any 10 consecutive trading-day period in which
the average of the trading prices for the CODES for that 10 trading-day period
is less than 105% of the average conversion value for the CODES during that
period.
"Conversion value" is equal to the product of the sale price for our common
stock on a given day multiplied by the then current conversion rate, which is
the number of shares of common stock into which each CODES is then
convertible.
The "trading price" of the CODES on any date of determination means the
average of the secondary market bid quotations per CODES obtained by us or the
calculation agent for $10,000,000 principal amount of the CODES at
approximately 3:30 p.m., New York City time, on such determination date from
three independent nationally recognized securities dealers we select, provided
that if at least three such bids cannot reasonably be obtained by us or the
calculation agent, but two such bids are obtained, then the average of the two
bids shall be used, and if only one such bid can reasonably be obtained by us
or the calculation agent, this one bid shall be used. If either we or the
calculation agent cannot reasonably obtain at least one bid for $10,000,000
principal amount of the CODES from a nationally recognized securities dealer
or in our reasonable judgment, the bid quotations are not indicative of the
secondary market value of the CODES, then the trading price of the CODES will
equal (a) the then-applicable conversion rate of the CODES multiplied by (b)
the sale price of our common stock on such determination date.
Conversion Upon Credit Rating Event
A holder may convert any of its CODES during any period in which the credit
ratings assigned to the CODES by either Moody's or Standard & Poor's is lower
than Ba2 or BB+, respectively, or in which the credit rating assigned to the
CODES is suspended or withdrawn by either rating agencies or in which neither
rating agency continues to rate the CODES or provide ratings services or
coverage to Apogent.
Conversion Upon Notice of Redemption
A holder may surrender for conversion any CODES we call for redemption at
any time prior to the close of business on the day that is two business days
prior to the redemption date, even if the CODES are not otherwise convertible
at that time. If a holder already has delivered a purchase notice or a change
of control purchase notice with respect to a CODES, however, the holder may
not surrender that CODES for conversion until the holder has withdrawn the
notice in accordance with the indenture.
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Conversion Upon Specified Corporate Transactions
If:
. we distribute to all holders of our common stock certain rights entitling
them to purchase, for a period expiring within 60 days of the date of
distribution, common stock at less than the trading price of the common
stock at the time of the announcement of such distribution;
. we elect to distribute to all holders of our common stock cash or other
assets, debt securities or certain rights to purchase our securities,
which distribution has a per share value exceeding 10% of the trading
price of the common stock on the day preceding the declaration date for
the distribution; or
. a change of control as described under "Repurchase of CODES at the Option
of Holders--Change of Control Put" occurs but holders of CODES do not
have the right to require us to repurchase their CODES as a result of
such change of control because either (1) the trading price of our common
stock for a specified period prior to such change of control exceeds a
specified level or (2) because the consideration received in such change
of control consists of capital stock that is freely tradable and the
CODES become convertible into that capital stock (each as more fully
described under "Repurchase of CODES at the Option of Holders--Change of
Control Put"),
then we must notify the holders of CODES at least 20 days prior to the ex-
dividend date for the distribution or within 30 days of the occurrence of the
change of control, as the case may be. Once we have given that notice, holders
may convert their CODES at any time until either (a) the earlier of close of
business on the business day prior to the ex-dividend date and our announcement
that the distribution will not take place, in the case of a distribution, or
(b) within 30 days of the change of control notice, in the case of a change of
control. In the case of a distribution, no adjustment to the ability of a
holder of CODES to convert will be made if the holder participates or will
participate in the distribution without conversion.
In addition, if we are party to a consolidation, merger or binding share
exchange pursuant to which our common stock will be converted into cash,
securities or other property, a holder may convert CODES at any time from and
after the date which is 15 days prior to the anticipated effective date of the
transaction until 15 days after the effective date of the transaction. If we
are a party to a consolidation, merger or binding share exchange pursuant to
which our common stock is converted into cash, securities or other property,
then at the effective time of the transaction, the right to convert a CODES
into common stock will be changed into a right to convert the CODES into the
kind and amount of cash, securities or other property which the holder would
have received if the holder had converted such CODES immediately prior to the
transaction. If the transaction also constitutes a "change of control," as
defined below, the holder can require us to repurchase all or a portion of its
CODES as described under "--Repurchase at Option of Holders--Change of Control
Put."
Conversion Procedures
Except as provided below, if you convert your CODES into our common stock on
any day other than an interest payment date, you will not receive any interest
that has accrued on the CODES. By delivering to the holder the number of shares
issuable upon conversion, determined by dividing the principal amount of the
CODES being converted by the conversion price, together with a cash payment, if
any, in lieu of fractional shares, we will satisfy our obligation with respect
to the converted CODES. That is, accrued but unpaid interest (including
contingent interest) will be deemed to be paid in full rather than canceled,
extinguished or forfeited. If you convert after a record date for an interest
payment but prior to the corresponding interest payment date, you will receive
interest accrued and paid on such CODES on the interest payment date,
notwithstanding the conversion of such CODES prior to such interest payment
date, because you will have been the holder of record on the corresponding
record date. However, at the time of surrender of such CODES for conversion,
you must pay us an amount equal to the interest that has accrued and will be
paid on the CODES being converted on the interest payment date. The preceding
sentence does not apply, however, to a holder that converts, after a record
date for an interest payment date but prior to the corresponding interest
payment date, CODES that we call for redemption prior to such conversion on a
redemption date that is on or prior to the third business day after such
interest payment date.
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You will not be required to pay any taxes or duties relating to the issuance
or delivery of our common stock if you exercise your conversion rights, but you
will be required to pay any tax or duty which may be payable relating to any
transfer involved in the issuance or delivery of the common stock in a name
other than your own. Certificates representing shares of common stock will be
issued or delivered only after all applicable taxes and duties, if any, payable
by you have been paid.
To convert interests in a global CODES, you must deliver to DTC the
appropriate instruction form for conversion pursuant to DTC's conversion
program. To convert a definitive CODES, you must:
. complete the conversion notice on the back of the CODES (or a facsimile
thereof);
. deliver the completed conversion notice and the CODES to be converted to
the specified office of the conversion agent;
. pay all funds required, if any, relating to interest on the CODES to be
converted to which you are not entitled, as described in the second
preceding paragraph; and
. pay all taxes or duties, if any, as described in the preceding paragraph.
The conversion date will be the date on which all of the foregoing
requirements have been satisfied. The CODES will be deemed to have been
converted immediately prior to the close of business on the conversion date. A
certificate for the number of shares of common stock into which the CODES are
converted (and cash in lieu of any fractional shares) will be delivered as soon
as practicable on or after the conversion date.
Conversion Price Adjustments
We will adjust the initial conversion price for certain events, including:
. issuances of our common stock as a dividend or distribution on our common
stock;
. certain subdivisions and combinations of our common stock;
. issuances to all holders of our common stock of certain rights or
warrants to purchase our common stock (or securities convertible into our
common stock) at less than (or having a conversion price per share less
than) the then-current market price of our common stock;
. distributions to all holders of our common stock of shares of our capital
stock (other than our common stock), evidences of our indebtedness or
assets including securities, but excluding:
. the rights and warrants referred to in the third bullet point,
. any dividends and distributions in connection with a reclassification,
change, consolidation, merger, combination, sale or conveyance
resulting in a change in the conversion consideration pursuant to the
second succeeding paragraph, or
. any dividends or distributions paid exclusively in cash;
. distributions consisting exclusively of cash to all holders of our common
stock to the extent that such distributions, combined together with:
. all other such all-cash distributions made within the preceding 12
months for which no adjustment has been made, plus
. any cash and the fair market value of other consideration paid for in
any tender offers by us or any of our subsidiaries for our common stock
expiring within the preceding 12 months for which no adjustment has
been made, exceed 10% of our market capitalization on the record date
for such distribution; market capitalization is the product of the then
current market price of our common stock times the number of shares of
our common stock then outstanding; and
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. purchases of our common stock pursuant to a tender offer made by us or
any of our subsidiaries to the extent that the same involves an aggregate
consideration that, together with:
. any cash and the fair market value of any other consideration paid in
any other tender offer by us or any of our subsidiaries for our common
stock expiring within the 12 months preceding such tender offer for
which no adjustment has been made, plus
. the aggregate amount of any all-cash distributions referred to in the
preceding bullet point to all holders of our common stock within 12
months preceding the expiration of tender offer for which no
adjustments have been made,
exceeds 10% of our market capitalization on the expiration of such tender
offer.
We will not make an adjustment in the conversion price unless such
adjustment would require a change of at least 1% in the conversion price then
in effect at such time. We will carry forward and take into account in any
subsequent adjustment any adjustment that would otherwise be required to be
made. Except as stated above, we will not adjust the conversion price for the
issuance of our common stock or any securities convertible into or exchangeable
for our common stock or carrying the right to purchase any of the foregoing.
If we:
. reclassify or change our common stock (other than changes resulting from
a subdivision or combination); or
. consolidate or combine with or merge into any person or sell or convey to
another person all or substantially all of our property and assets,
and the holders of our common stock receive stock, other securities or other
property or assets (including cash or any combination thereof) with respect to
or in exchange for their common stock, the holders of the CODES may convert the
CODES into the consideration they would have received if they had converted
their CODES immediately prior to such reclassification, change, consolidation,
combination, merger, sale or conveyance. We may not become a party to any such
transaction unless its terms are consistent with the foregoing.
In the event that we distribute shares of capital stock of a subsidiary of
ours, the conversion rate will be adjusted, if at all, based on the market
value of the subsidiary stock so distributed relative to the market value of
our common stock, in each case over a measurement period following the
distribution.
In the event we elect to make a distribution described in the third or
fourth bullet points of the first paragraph of this subsection "--Conversion
Price Adjustments," which, in the case of the fourth bullet, has a per share
value equal to more than 10% of the sale price of our shares of common stock on
the day preceding the declaration date for the distribution, then, if the
distribution would also trigger a conversion right under "--Conversion Upon
Specified Corporate Transactions," or if the CODES are otherwise convertible,
we will be required to give notice to the holders of CODES at least 20 days
prior to the ex-dividend date for the distribution and, upon the giving of
notice, the CODES may be surrendered for conversion at any time until the close
of business on the business day prior to the ex-dividend date or until we
announce that the distribution will not take place. No adjustment to the
conversion price or the ability of a holder of a CODES to convert will be made
if the holder will otherwise participate in the distribution without conversion
or in certain other cases.
If a taxable distribution to holders of our common stock or other
transaction occurs which results in any adjustment of the conversion price, you
may, in certain circumstances, be deemed to have received a distribution
subject to U.S. income tax as a dividend. In certain other circumstances, the
absence of an adjustment may result in a taxable dividend to the holders of our
common stock. See "Certain United States Federal Income Tax Considerations."
We may from time to time, to the extent permitted by law, reduce the
conversion price of the CODES by any amount for any period of at least 20 days.
In that case, we will give at least 15 days' notice of such
22
decrease. We may make such reductions in the conversion price, in addition to
those set forth above, as our board of directors deems advisable to avoid or
diminish any income tax to holders of our common stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for income tax purposes.
Optional Redemption by Apogent
Optional Redemption
We may not redeem the CODES in whole or in part at any time prior to October
20, 2004. At any time on or after October 20, 2004, we may redeem some or all
of the CODES on at least 20 but not more than 60 days' notice, at a redemption
price equal to 100% of the principal amount thereof. In addition, we will pay
interest (including contingent interest) on the CODES being redeemed, including
those CODES which are converted into our common stock after the date the notice
of the redemption is mailed and prior to the redemption date. This interest
will include interest accrued and unpaid to, but excluding, the redemption
date. If the redemption date is an interest payment date, we will pay the
interest to the holder of record on the corresponding record date, which may or
may not be the same person to whom we will pay the redemption price.
Partial Redemption
If we do not redeem all of the CODES, the trustee will select the CODES to
be redeemed in principal amounts of $1,000 or whole multiples of $1,000 by lot
or on a pro rata basis. If any CODES are to be redeemed in part only, we will
issue a new CODES in principal amount equal to the unredeemed principal portion
thereof. If a portion of your CODES is selected for partial redemption and you
convert a portion of your CODES, the converted portion will be deemed to be
taken from the portion selected for redemption.
Repurchase at Option of Holders
Optional Put
On October 20, 2004 and on October 15, 2006, 2011 and 2016, a holder may
require us to repurchase all or a portion of its CODES for which the holder has
properly delivered and not withdrawn a written repurchase notice, subject to
certain additional conditions, at a repurchase price equal to 100% of the
principal amount of those CODES plus any accrued and unpaid interest, including
contingent interest, on those CODES to the repurchase date. Holders may submit
their CODES for repurchase to the paying agent at any time from the opening of
business on the date that is 20 business days prior to the repurchase date
until the close of business on the third business day prior to the repurchase
date.
We will be required to give notice at least 20 business days prior to each
repurchase date to all holders at their addresses shown in the register of the
registrar and to beneficial owners as required by applicable law stating, among
other things, the procedures that holders must follow to require us to
repurchase their CODES as described below.
The repurchase notice given by each holder electing to require us to
repurchase CODES must be received by the paying agent no later than the close
of business on the third business day prior to the repurchase date and must
state certain information, including:
. the certificate numbers of the holder's CODES to be delivered for
repurchase;
. the portion of the principal amount of CODES to be repurchased, which
must be $1,000 or an integral multiple of $1,000; and
. that the CODES are to be repurchased by us pursuant to the applicable
provision of the indenture.
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A holder may withdraw any repurchase notice by delivering a written notice
of withdrawal to the paying agent prior to the close of business on the
repurchase date. The notice of withdrawal shall state certain information,
including:
. the principal amount of CODES being withdrawn;
. the certificate numbers of the CODES being withdrawn; and
. the principal amount, if any, of the CODES that remain subject to the
repurchase notice.
In connection with any repurchase we will, to the extent applicable:
. comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender
offer rules under the Exchange Act which may then be applicable; and
. file Schedule TO or any other required schedule under the Exchange Act.
Our obligation to pay the repurchase price for CODES for which a repurchase
notice has been delivered and not validly withdrawn is conditioned upon the
holder delivering the CODES, together with necessary endorsements, to the
paying agent at any time after delivery of the repurchase notice. We will cause
the purchase price for the CODES to be paid promptly following the later of the
repurchase date or the time of delivery of the CODES, together with such
endorsements.
If the paying agent holds money sufficient to pay the purchase price of the
CODES for which a repurchase notice has been given on the business day
following the repurchase date in accordance with the terms of the indenture,
then, immediately after the repurchase date, the CODES will cease to be
outstanding and interest on the CODES will cease to accrue, whether or not the
CODES are delivered to the paying agent. Thereafter, all other rights of the
holder shall terminate, other than the right to receive the purchase price upon
delivery of the CODES.
Our ability to repurchase CODES for cash may be limited by restrictions on
our ability to obtain funds for such repurchase through dividends from its
subsidiaries and the terms of our then existing borrowing agreements.
Change of Control Put
If a change of control occurs, you will have the right to require us to
repurchase all or a portion of your CODES not previously called for redemption,
or any portion of those CODES that is equal to $1,000 or a whole multiple of
$1,000. The repurchase price is equal to 100% of the principal amount of the
CODES to be repurchased. We will also pay interest (including contingent
interest) accrued and unpaid to, but excluding, the repurchase date.
Notwithstanding the foregoing, you will not have a right to require us to
repurchase the CODES unless prior to that repurchase we have made any
applicable change of control offers required by our senior debt and have
purchased all senior debt validly tendered for payment in connection with such
change of control offers.
Within 30 days after the occurrence of a change of control, we are required
to give you notice of the occurrence of the change of control and of your
resulting repurchase right. The repurchase date is 30 days after the date we
give notice of a change of control. To exercise the repurchase right, you must
deliver prior to the close of business on the business day immediately
preceding the repurchase date, written notice to the trustee of your exercise
of your repurchase right, together with the CODES with respect to which your
right is being exercised. You may withdraw this notice by delivering to the
paying agent a notice of withdrawal prior to the close of business on the
business day immediately preceding the repurchase date.
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A "change of control" will be deemed to have occurred at such time after the
original issuance of the CODES when any of the following has occurred:
. the acquisition by any person, including any syndicate or group deemed to
be a "person" under Section 13(d)(3) of the Securities Exchange Act of
1934, as amended, of beneficial ownership, directly or indirectly,
through a purchase, merger or other acquisition transaction or series of
purchase, merger or other acquisition transactions of shares of our
capital stock entitling that person to exercise 50% or more of the total
voting power of all shares of our capital stock entitled to vote
generally in elections of directors, other than any acquisition by us,
any of our subsidiaries or any of our employee benefit plans (except that
such person shall be deemed to have beneficial ownership of all
securities that such person has the right to acquire, whether such right
is currently exercisable or is exercisable only upon the occurrence of a
subsequent condition); or
. the first day on which a majority of the members of the board of
directors of Apogent are not continuing directors; or
. the consolidation or merger of us with or into any other person, any
merger of another person into us, or any conveyance, transfer, sale,
lease or other disposition of all or substantially all of our properties
and assets to another person, other than:
(1) any transaction:
. that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of our capital stock; and
. pursuant to which holders of our capital stock immediately prior to
such transaction have the entitlement to exercise, directly or
indirectly, 50% or more of the total voting power of all shares of
our capital stock entitled to vote generally in elections of
directors of the continuing or surviving person immediately after
giving effect to such issuance; and
(2) any merger solely for the purpose of changing our jurisdiction of
incorporation and resulting in a reclassification, conversion or
exchange of outstanding shares of common stock solely into shares of
common stock of the surviving entity.
However, a change of control will be deemed not to have occurred if:
. the closing sale price per share of our common stock for any five trading
days within:
. the period of 10 consecutive trading days ending immediately after the
later of the change of control or the public announcement of the change
of control, in the case of a change of control under the first bullet
point above, or
. the period of 10 consecutive trading days ending immediately before the
change of control, in the case of a change of control under the second
bullet point above,
equals or exceeds 110% of the conversion price of the CODES in effect on each
such trading day; or
. at least 90% of the consideration in the transaction or transactions
constituting a change of control consists of shares of common stock
traded or to be traded immediately following such change of control on a
national securities exchange or the Nasdaq National Market and, as a
result of the transaction or transactions, the CODES become convertible
solely into such common stock (and any rights attached thereto).
The beneficial owner shall be determined in accordance with Rule 13d-3
promulgated by the SEC under the Exchange Act. The term "person" includes any
syndicate or group which would be deemed to be a "person" under Section
13(d)(3) of the Exchange Act.
25
"Continuing directors" means, as of any date of determination, any member of
the board of directors of Apogent who:
. was a member of the board of directors on October 10, 2001; or
. was nominated for election or elected to the board of directors with the
approval of two-thirds of the continuing directors who were members of
the board at the time of a new director's nomination or election.
Rule 13e-4 under the Exchange Act requires the dissemination of certain
information to security holders if an issuer tender offer occurs and may apply
if the repurchase option becomes available to holders of the CODES. We will
comply with this rule to the extent applicable at that time.
We may, to the extent permitted by applicable law, at any time purchase the
CODES in the open market or by tender at any price or by private agreement. Any
CODES so purchased by us may, to the extent permitted by applicable law, be
reissued or resold or may be surrendered to the trustee for cancellation. Any
CODES surrendered to the trustee may not be reissued or resold and will be
canceled promptly.
The foregoing provisions would not necessarily protect holders of the CODES
if highly leveraged or other transactions involving us occur that may adversely
affect holders.
Our ability to repurchase CODES upon the occurrence of a change in control
is subject to important limitations. The occurrence of a change of control
could cause an event of default under, or be prohibited or limited by, the
terms of senior debt that we may incur in the future. Further, we cannot assure
you that we would have the financial resources, or would be able to arrange
financing, to pay the repurchase price for all the CODES that might be
delivered by holders of CODES seeking to exercise the repurchase right. Any
failure by us to repurchase the CODES when required following a change of
control would result in an event of default under the indenture. Any such
default may, in turn, cause a default under senior debt that we may incur in
the future.
Subsidiary Guarantees
The guarantors will jointly and severally guarantee Apogent's obligations
under the CODES. The obligations of each guarantor under its guarantee will be
limited as necessary to prevent that guarantee from constituting a fraudulent
conveyance under the applicable laws. See "Risk Factors--The subsidiary
guarantees may raise fraudulent transfer issues, which could impair the
enforceability of the subsidiary guarantees."
Guarantors may, without the consent of the holders of CODES, consolidate
with, merge with or into or transfer all or substantially all of their assets
to any other corporation organized under the laws of the United States or any
of its political subdivisions provided that:
. at the time of such transaction, no event of default, and no event which,
after notice or lapse of time, would become an event of default, shall
have happened and be continuing; and
. certain other conditions are met.
The guarantee of a guarantor will be released:
. in connection with any sale or other disposition of all or substantially
all of the assets of that guarantor (including by way of merger or
consolidation);
. in connection with any sale of all of the capital stock of the guarantor;
or
. in connection with any termination of the obligations of that guarantor
under the Credit Agreement.
26
Initial Guarantors
The CODES will be initially guaranteed by all of the U.S. companies that are
our subsidiaries on the date that the CODES are first issued, other than
subsidiaries that are inactive, in the process of liquidation or own less than
$1,000,000 in assets.
Future Guarantors
After the date the CODES were first issued and prior to the date upon which
the shelf registration statement of which this prospectus is a part is first
declared effective by the SEC and after the date upon which we are no longer
required to keep the shelf registration statement effective, we will cause each
newly created or acquired subsidiary which becomes a guarantor under the Credit
Agreement to promptly execute and deliver to the trustee a guarantee pursuant
to which such subsidiary will unconditionally guarantee, on a joint and several
basis, the full and prompt payment of the principal, interest (including
contingent interest), if any, and additional amounts with respect to the CODES.
During the period following the effective date of the shelf registration
statement and prior to the date upon which we are no longer required to keep
the shelf registration statement effective, we will cause each subsidiary
created or acquired by us and which becomes a guarantor under the Credit
Agreement to execute and deliver to the trustee on or before the next following
roll-up date a similar guarantee. As used herein, "roll-up date" means December
31, 2002 and the last day of any calendar month in which the consolidated net
sales or consolidated total assets of the companies which are then guarantors
of the CODES becomes less than 90% of the consolidated net sales or
consolidated total assets, as the case may be, of the entities which then
guarantee our obligations under the Credit Agreement.
Events of Default
Each of the following will constitute an event of default under the
indenture:
(1) our failure to convert CODES into shares of our common stock upon
exercise of a holder's conversion right;
(2) our failure to pay when due the principal of any of the CODES at
maturity, upon redemption or exercise of a repurchase right or otherwise;
(3) our failure to pay an installment of interest (including contingent
interest) on any of the CODES for 30 days after the date when due;
(4) our failure to pay additional amounts, if any, with respect to any
of the CODES for 30 days after the date when due;
(5) the failure by us or any guarantor to perform or observe any other
term, covenant or agreement contained in the CODES or the indenture for a
period of 60 days after written notice of such failure, requiring us to
remedy the same, shall have been given to us by the trustee or to us and
the trustee by the holders of at least 25% in aggregate principal amount of
the CODES then outstanding;
(6) a default under any indebtedness for money borrowed by us, any
guarantor or any of our subsidiaries that is a "significant subsidiary" or
any group of two or more subsidiaries that, taken as a whole, would
constitute a significant subsidiary, the aggregate outstanding principal
amount of which is in an amount in excess of $25 million, for a period of
30 days after written notice to us by the trustee or to us and the trustee
by holders of at least 25% in aggregate principal amount of the CODES then
outstanding, which default:
. is caused by a failure to pay when due principal or interest on such
indebtedness by the end of the applicable grace period, if any,
unless such indebtedness is discharged; or
. results in the acceleration of such indebtedness, unless such
acceleration is waived, cured, rescinded or annulled;
27
(7) certain events of bankruptcy, insolvency or reorganization with
respect to us, any guarantor or any of our subsidiaries that is a
significant subsidiary or any group of two or more subsidiaries that, taken
as a whole, would constitute a significant subsidiary; and
(8) unless the guarantee is released as described under "Subsidiary
Guarantees," any guarantee shall be held in any judicial proceeding to be
unenforceable or invalid.
The indenture provides that the trustee shall, within 90 days of the
occurrence of a default, give to the registered holders of the CODES notice of
all uncured defaults known to it, but the trustee shall be protected in
withholding such notice if it, in good faith, determines that the withholding
of such notice is in the best interest of such registered holders, except in
the case of a default in the payment of the principal of or interest on any of
the CODES when due or in the payment of any redemption or repurchase
obligation.
If an event of default specified in clause (6) or (7) above occurs and is
continuing, then automatically the principal of all the CODES and the interest
(including contingent interest) thereon shall become immediately due and
payable. If an event of default shall occur and be continuing, other than with
respect to clause (6) or (7) above (the default not having been cured or waived
as provided under "--Modifications, Amendments and Meetings" below), the
trustee or the holders of at least 25% in aggregate principal amount of the
CODES then outstanding may declare the CODES due and payable at their principal
amount together with accrued interest, and thereupon the trustee may, at its
discretion, proceed to protect and enforce the rights of the holders of CODES
by appropriate judicial proceedings. Such declaration may be rescinded or
annulled either with the written consent of the holders of a majority in
aggregate principal amount of the CODES then outstanding or a majority in
aggregate principal amount of the CODES represented at a meeting at which a
quorum (as specified under "--Modifications, Amendments and Meetings" below) is
present, in each case upon the conditions provided in the indenture.
The indenture contains a provision entitling the trustee, subject to the
duty of the trustee during default to act with the required standard of care,
to be indemnified by the holders of CODES before proceeding to exercise any
right or power under the indenture at the request of such holders. The
indenture provides that the holders of a majority in aggregate principal amount
of the CODES then outstanding through their written consent, or the holders of
a majority in aggregate principal amount of the CODES then outstanding
represented at a meeting at which a quorum is present by a written resolution,
may direct the time, method and place of conducting any proceeding for any
remedy available to the trustee or exercising any trust or power conferred upon
the trustee.
We are required to furnish annually to the trustee a statement as to the
fulfillment of our obligations under the indenture.
Consolidation, Merger or Assumption
We and any guarantor may, without the consent of the holders of CODES,
consolidate with, merge into or transfer all or substantially all of our assets
to any other corporation organized under the laws of the United States or any
of its political subdivisions provided that:
. the surviving corporation assumes all our obligations under the
indenture; and
. at the time of such transaction, no event of default, and no event which,
after notice or lapse of time, would become an event of default, shall
have happened and be continuing; and
. certain other conditions are met.
28
Modifications, Amendments and Meetings
Changes Requiring Approval of Each Affected Holder
The indenture (including the terms and conditions of the CODES) cannot be
modified or amended without the written consent or the affirmative vote of the
holder of each CODES affected by such change to:
. change the maturity of the principal of or any installment of interest on
any CODES;
. reduce the principal amount of, or any premium or interest on (including
any payment of additional amounts), redemption price or purchase price
(including change of control purchase price) of any CODES;
. impair or adversely affect the conversion rights of any holder of CODES;
. impair or adversely affect the rights of any holder of CODES with respect
to the guarantees;
. change the currency of payment of such CODES or interest thereon;
. alter the manner of calculation or rate of accrual of interest, or
contingent interest on any CODES or extend the payment of any such
amount;
. impair the right to institute suit for the enforcement of any payment on
or with respect to any CODES;
. modify our obligations to maintain an office or agency in New York City;
. except as otherwise permitted or contemplated by provisions concerning
corporate reorganizations, adversely affect the repurchase option of
holders upon a change of control or the conversion rights of holders of
the CODES;
. modify the redemption provisions of the indenture in a manner adverse to
the holders of CODES;
. reduce the percentage in aggregate principal amount of CODES outstanding
necessary to modify or amend the indenture or to waive any past default;
or
. reduce the percentage in aggregate principal amount of CODES outstanding
required for the adoption of a resolution or the quorum required at any
meeting of holders of CODES at which a resolution is adopted.
Changes Requiring Majority Approval
The indenture (including the terms and conditions of the CODES) may be
modified or amended either:
. with the written consent of the holders of at least a majority in
aggregate principal amount of the CODES at the time outstanding; or
. by the adoption of a resolution at a meeting of holders by at least a
majority in aggregate principal amount of the CODES represented at such
meeting.
Changes Requiring No Approval
The indenture (including the terms and conditions of the CODES) may be
modified or amended by us and the trustee, without the consent of the holder
of any CODES, for the purposes of, among other things:
. adding to our covenants for the benefit of the holders of CODES;
. surrendering any right or power conferred upon us;
. providing for conversion rights of holders of CODES if any
reclassification or change of our common stock or any consolidation,
merger or sale of all or substantially all of our assets occurs;
29
. providing for the assumption of our obligations to the holders of CODES
in the case of a merger, consolidation, conveyance, transfer or lease;
. reducing the conversion price, provided that the reduction will not
adversely affect the interests of the holders of CODES (after taking into
account tax and other consequences of such reduction);
. complying with the requirements of the SEC in order to effect or maintain
the qualification of the indenture under the Trust Indenture Act of 1939,
as amended;
. making any changes or modifications necessary in connection with the
registration of the CODES under the Securities Act as contemplated in the
registration rights agreement; provided that such change or modification
does not, in the good faith opinion of our board of directors and the
trustee, adversely affect the interests of the holders of CODES in any
material respect;
. curing any ambiguity or correcting or supplementing any defective
provision contained in the indenture; provided that such modification or
amendment does not, in the good faith opinion of our board of directors
and the trustee, adversely affect the interests of the holders of CODES
in any material respect;
. adding guarantees with respect to the CODES; or
. adding or modifying any other provisions with respect to matters or
questions arising under the indenture which we and the trustee may deem
necessary or desirable and which will not adversely affect the interests
of the holders of CODES.
Meetings
The indenture contains provisions for convening meetings of the holders of
CODES to consider matters affecting their interests.
Quorum
The quorum at any meeting called to adopt a resolution will be persons
holding or representing a majority in aggregate principal amount of the CODES
at the time outstanding and, at any reconvened meeting adjourned for lack of a
quorum, 25% of the aggregate principal amount.
Satisfaction and Discharge
We may satisfy and discharge our obligations under the indenture while CODES
remain outstanding, subject to certain conditions, if:
. all outstanding CODES will become due and payable at their scheduled
maturity within one year; or
. all outstanding CODES are scheduled for redemption within one year,
and, in either case, we have deposited with the trustee an amount sufficient to
pay and discharge all outstanding CODES on the date of their scheduled maturity
or the scheduled date of redemption.
Governing Law
The indenture and the CODES are governed by, and will be construed in
accordance with, the law of the State of New York, without regard to conflicts
of law principles thereof.
Information Concerning the Trustee
The Bank of New York, as trustee under the indenture, has been appointed by
us as paying agent, conversion agent, registrar and custodian with regard to
the CODES. EquiServe Trust Company, N.A. is the
30
transfer agent and registrar for our common stock. The trustee or its
affiliates may from time to time in the future provide banking and other
services to us in the ordinary course of their business.
Calculations in Respect of CODES
We are responsible for making many of the calculations called for under the
CODES. These calculations include, but are not limited to, determination of the
trading prices of the CODES and of our common stock and amounts of contingent
interest payments, if any, payable on the CODES. We will make all these
calculations in good faith and, absent manifest error, our calculations will be
final and binding on holders of CODES. We will provide a schedule of our
calculations to the trustee, and the trustee is entitled to rely conclusively
on the accuracy of our calculations without independent verification.
Registration Rights
In connection with our initial sales of the CODES in October, 2001, we and
the guarantors entered into a registration rights agreement with the initial
purchasers for the benefit of the holders of the CODES. Pursuant to the
agreement, we agreed that we would, at our expense:
. file with the SEC not later than 90 days after the earliest date of
original issuance of any of the CODES a registration statement on such
form as we deem appropriate covering resales by holders of all CODES and
the common stock issuable upon conversion of the CODES;
. file with the SEC not later than each roll-up date a registration
statement on such form as we deem appropriate reflecting the guarantees
by the entities who became guarantors on the roll-up date and covering
resales by the holders of all CODES and the common stock issuable upon
conversion of the CODES;
. cause each such registration statement to become effective as promptly as
is practicable, but in no event later than 180 days after the earliest
date of original issuance of any of the CODES, in the case of the initial
shelf registration statement, or within 30 days after the applicable
roll-up date, in the case of any other shelf registration statement; and
. keep each registration statement effective until the earliest of:
. two years after the last date of original issuance of any of the CODES;
. the date when the holders of the CODES and the common stock issuable
upon conversion of the CODES are able to sell all such securities
immediately without restriction pursuant to the volume limitation
provisions of Rule 144 under the Securities Act; and
. the date when all of the CODES and the common stock into which the
CODES are convertible that are owned by the holders who complete and
deliver in a timely manner the selling securityholder election and
questionnaire described below are registered under such shelf
registration statements and disposed of in accordance with the shelf
registration statements.
We have now satisfied the first of the requirements listed above. The
registration statement of which this prospectus is a part is the initial shelf
registration statement required by the registration rights agreement.
Pursuant to the registration rights agreement, we were required to mail a
notice of each registration statement and a form of selling securityholder
election and questionnaire to each holder of the CODES to obtain certain
information regarding the holder for inclusion in this prospectus. The
information included herein under "Selling Holders and Plan of Distribution" is
based on the information provided to us in those questionnaires.
31
Pursuant to the registration rights agreement, we are required to:
. provide to each holder for whom the shelf registration statement was
filed copies of the prospectus that is a part of the shelf registration
statement;
. notify each such holder when the shelf registration statement has become
effective;
. notify each such holder of the commencement of any suspension period; and
. take certain other actions as are required to permit unrestricted resales
of the CODES and the common stock issuable upon conversion of the CODES.
Each holder who sells securities pursuant to the shelf registration
statements generally will be:
. required to be named as a selling stockholder in the related prospectus;
. required to deliver a prospectus to purchasers;
. subject to certain of the civil liability provisions under the Securities
Act in connection with the holder's sales; and
. bound by the provisions of the registration rights agreement which are
applicable to the holder (including certain indemnification rights and
obligations).
Each holder must notify us not later than three business days prior to any
proposed sale by that holder pursuant to the shelf registration statements.
This notice will be effective for five business days. A suggested form of the
required notice is attached as Annex A to this prospectus. Except as otherwise
provided herein, we may suspend the holder's use of the prospectus for a
reasonable period not to exceed 45 days in any 90-day period, and not to exceed
an aggregate of 90 days in any 360-day period, if:
. the prospectus would, in our judgment, contain a material misstatement or
omission as a result of an event that has occurred and is continuing; and
. we reasonably determine that the disclosure of this material non-public
information would have a material adverse effect on us and our
subsidiaries taken as a whole.
However, if the disclosure relates to a previously undisclosed proposed or
pending material business transaction, the disclosure of which would impede our
ability to consummate such transaction, we may extend the suspension period
from 45 days to 60 days. Each holder, by its acceptance of a CODES, agrees to
hold any communication by us in response to a notice of a proposed sale in
confidence.
Upon the initial sale of CODES or common stock issued upon conversion of the
CODES pursuant to this prospectus, each selling holder will be required to
deliver a notice of such sale to the trustee and us. The notice will, among
other things:
. identify the sale as a transfer pursuant to the shelf registration
statements;
. certify that the prospectus delivery requirements, if any, of the
Securities Act have been complied with; and
. certify that the selling holder and the aggregate principal amount of
CODES or number of shares, as the case may be, owned by such holder are
identified in the related prospectus in accordance with the applicable
rules and regulations under the Securities Act.
A suggested form of the required notice is attached as Annex B to this
prospectus.
Under the registration rights agreement, if,
. we have not filed a shelf registration statement with the SEC prior to or
on the 90th day following the earliest date of original issuance of any
of the CODES, in the case of the initial shelf registration
32
statement, or on or prior to the applicable roll-up date, in the case of
each subsequent shelf registration statement;
. the initial shelf registration statement has not been declared effective
prior to or on the 180th day following the earliest date of original
issuance of any of the CODES or any subsequent shelf registration
statement has not been declared effective within 30 days of the
applicable roll-up date; or
. any registration statement ceases to be effective or fails to be usable
and (1) we do not cure the registration statement within five business
days by a post-effective amendment or a report filed pursuant to the
Exchange Act or (2) if applicable, we do not terminate the suspension
period, described in the preceding paragraph, by the 45th or 60th day, as
the case may be, or the suspension periods exceed an aggregate of 90 days
in any 360 day period (each, a "registration default"),
then additional amounts will accrue on the CODES, from and including the day
following the registration default to but excluding the day on which the
registration default has been cured. Additional amounts will be paid
semiannually in arrears, with the first semiannual payment due on the first
interest payment date, as applicable, following the date on which such
additional amounts begin to accrue, and will accrue at a rate per year equal
to:
. an additional 0.25% of the principal amount to and including the 90th day
following such registration default; and
. an additional 0.50% of the principal amount from and after the 91st day
following such registration default.
In no event will additional amounts accrue at a rate per year exceeding 0.50%.
If a holder has converted some or all of its CODES into common stock, the
holder will be entitled to receive equivalent amounts based on the principal
amount of the CODES converted. A holder will not be entitled to additional
amounts unless it has provided all information requested by the questionnaire
prior to the deadline.
Form, Denomination and Registration
Denomination and Registration. The CODES have been issued in fully
registered form, without coupons, in denominations of $1,000 principal amount
and whole multiples of $1,000.
Global Securities: Book-Entry Form. Except as provided below, CODES will be
evidenced by one or more global securities deposited with the trustee as
custodian for DTC, and registered in the name of Cede & Co. as DTC's nominee.
Record ownership of the global securities may be transferred, in whole or in
part, only to another nominee of DTC or to a successor of DTC or its nominee,
except as set forth below. A holder may hold its interests in the global CODES
directly through DTC if the holder is a participant in DTC, or indirectly
through organizations which are direct DTC participants if such holder is not a
participant in DTC. Transfers between direct DTC participants will be effected
in the ordinary way in accordance with DTC's rules and will be settled in same-
day funds. Holders may also beneficially own interests in the global CODES held
by DTC through certain banks, brokers, dealers, trust companies and other
parties that clear through or maintain a custodial relationship with a direct
DTC participant, either directly or indirectly.
So long as Cede & Co., as nominee of DTC, is the registered owner of the
global securities, Cede & Co. for all purposes will be considered the sole
holder of the global securities. Except as provided below, owners of beneficial
interests in the global securities:
. will not be entitled to have certificates registered in their names;
. will not receive or be entitled to receive physical delivery of
certificates in definitive form; and
33
. will not be considered holders of the global securities.
The laws of some states require that certain persons take physical delivery of
securities in definitive form. Consequently, the ability of an owner of a
beneficial interest in a global CODES to transfer the beneficial interest in
the global CODES to such persons may be limited.
We will wire, through the facilities of the trustee, payments of principal
and interest payments on the global securities to Cede & Co., the nominee of
DTC, as the registered owner of the global securities. None of Apogent, the
trustee and any paying agent will have any responsibility or be liable for
paying amounts due on the global securities to owners of beneficial interests
in the global securities.
It is DTC's current practice, upon receipt of any payment of principal of
and interest on the global securities, to credit participants' accounts on the
payment date in amounts proportionate to their respective beneficial interests
in the CODES represented by the global securities, as shown on the records of
DTC, unless DTC believes that it will not receive payment on the payment date.
Payments by DTC participants to owners of beneficial interests in CODES
represented by the global securities held through DTC participants will be the
responsibility of DTC participants, as is now the case with securities held for
the accounts of customers registered in "street name."
Because of time zone differences, the securities accounts of a Euroclear
System ("Euroclear") or Clearstream Bank, societe anonyme ("Clearstream")
participant purchasing an interest in a global CODES from a participant in DTC
will be credited, and any such crediting will be reported to the relevant
Euroclear or Clearstream participant, during the securities settlement
processing day (which must be a business day for Euroclear or Clearstream)
immediately following the settlement date of DTC. Cash received in Euroclear or
Clearstream as a result of sales of interests in a global CODES by or through a
Euroclear or Clearstream participant to a participant in DTC will be received
with value on the settlement date of DTC but will be available in the relevant
Euroclear or Clearstream cash account only as of the business day for Euroclear
or Clearstream following DTC's settlement date.
If you would like to convert your CODES into common stock pursuant to the
terms of the CODES, you should contact your broker or other direct or indirect
DTC participant to obtain information on procedures, including proper forms and
cut-off times, for submitting those requests.
Because DTC can only act on behalf of DTC participants, who in turn act on
behalf of indirect DTC participants and other banks, your ability to pledge
your interest in the CODES represented by global securities to persons or
entities that do not participate in the DTC system, or otherwise take actions
in respect of such interest, may be affected by the lack of a physical
certificate.
Neither Apogent nor the trustee (nor any registrar, paying agent or
conversion agent under the indenture) will have any responsibility for the
performance by DTC or direct or indirect DTC participants of their obligations
under the rules and procedures governing their operations. DTC has advised us
that it will take any action permitted to be taken by a holder of CODES,
including, without limitation, the presentation of CODES for conversion as
described below, only at the direction of one or more direct DTC participants
to whose account with DTC interests in the global securities are credited and
only for the principal amount of the CODES for which directions have been
given.
DTC has advised us as follows: DTC is a limited purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Securities Exchange Act of 1934, as amended. DTC was
created to hold securities for DTC participants and to facilitate the clearance
and settlement of securities transactions between DTC participants through
electronic book-entry changes to the accounts of its participants, thereby
eliminating the need for physical movement of certificates. Participants
include securities brokers and dealers, banks, trust companies and
34
clearing corporations and may include certain other organizations, such as the
initial purchasers of the CODES. Certain DTC participants or their
representatives, together with other entities, own DTC. Indirect access to the
DTC system is available to others such as banks, brokers, dealers and trust
companies that clear through, or maintain a custodial relationship with, a
participant, either directly or indirectly.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the global securities among DTC participants, it is
under no obligation to perform or continue to perform such procedures, and such
procedures may be discontinued at any time. If DTC is at any time unwilling or
unable to continue as depositary and a successor depositary is not appointed by
us within 90 days, we will cause CODES to be issued in definitive form in
exchange for the global securities. None of Apogent, the trustee or any of
their respective agents will have any responsibility for the performance by
DTC, direct or indirect DTC participants of their obligations under the rules
and procedures governing their operations, including maintaining, supervising
or reviewing the records relating to, or payments made on account of,
beneficial ownership interests in global securities.
According to DTC, the foregoing information with respect to DTC has been
provided to its participants and other members of the financial community for
informational purposes only and is not intended to serve as a representation,
warranty or contract modification of any kind.
Definitive CODES. Certain holders may request that their CODES be issued in
definitive, registered form, and may request at any time that their interests
in a global CODES be exchanged for a CODES in definitive form. Definitive CODES
may also be issued in exchange for CODES represented by the global securities
if we do not appoint a successor depositary as set forth above under "--Global
Securities: Book-Entry Form" or in certain other circumstances set forth in the
indenture.
Restrictions on Transfer. The CODES are subject to certain restrictions on
transfer set forth on the CODES and in the indenture.
35
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the material United States federal income tax
consequences, as of the date of this prospectus, of the purchase, ownership,
and disposition of CODES, and where noted, the common stock into which the
CODES may be converted. Except where noted, this summary deals only with a
CODES held as a capital asset by a United States holder who purchases the CODES
subsequent to their original issue, and it does not deal with special
situations. For example, this summary does not address:
. tax consequences to holders who may be subject to special tax treatment,
such as dealers in securities or currencies, traders in securities that
elect to use the mark-to-market method of accounting for their
securities, financial institutions, regulated investment companies, real
estate investment trusts, tax-exempt entities or insurance companies;
. tax consequences to persons holding CODES as part of a hedging,
constructive sale or conversion, straddle or other risk reducing
transaction;
. tax consequences to holders of CODES whose "functional currency" is not
the U.S. dollar;
. except where noted, the United States federal estate, gift or alternative
minimum tax consequences, if any, to holders of CODES; or
. any state, local or foreign tax consequences.
The discussion below is based upon the provisions of the Internal Revenue
Code of 1986, as amended (the "Code"), and regulations, rulings and judicial
decisions as of the date of this prospectus. Those authorities may be changed,
perhaps retroactively, so as to result in United States federal income tax
consequences different from those discussed below.
If a partnership holds the CODES, the tax treatment of a partner will
generally depend upon the status of the partner and the activities of the
partnership. If you are a partner of a partnership holding the CODES, you
should consult your own tax advisors.
No statutory, administrative or judicial authority directly addresses the
treatment of the CODES or instruments similar to the CODES for United States
federal income tax purposes. No rulings have been sought or are expected to be
sought from the Internal Revenue Service (the "IRS") with respect to any of the
United States federal income tax consequences discussed below, and no assurance
can be given that the IRS will not take contrary positions. As a result, no
assurance can be given that the IRS will agree with the tax characterizations
and the tax consequences described below.
If you are considering the purchase of CODES, you should consult your own
tax advisors concerning the federal income tax consequences in light of your
particular situation and any consequences arising under the laws of any other
taxing jurisdiction.
Classification of the CODES
Under the indenture governing the CODES, we and each holder of the CODES
agree, for United States federal income tax purposes, to treat the CODES as
indebtedness that is subject to the regulations governing contingent payment
debt instruments (the "Contingent Debt Regulations") in the manner described
below. The remainder of this discussion assumes that the CODES will be so
treated and does not address any possible differing treatments of the CODES.
However, the application of the Contingent Debt Regulations to instruments such
as the CODES is uncertain in several respects, and no rulings have been sought
from the IRS with respect to any of the tax consequences discussed below.
Accordingly, no assurance can be given that the IRS or a court will agree with
the treatment described herein. Any differing treatment could affect the
amount, timing and character of income, gain or loss in respect of an
investment in the CODES. In particular, a holder might be required to accrue
original issue discount at a lower rate, might not recognize income, gain or
loss upon conversion of the CODES to common stock, and might recognize capital
gain or loss upon a taxable
36
disposition of its CODES. Holders should consult their tax advisors concerning
the tax treatment of holding the CODES.
United States Holders
The following discussion is a summary of certain United States federal
income tax consequences that will apply to you if you are a United States
holder of CODES.
For purposes of this discussion, a United States holder is a beneficial
owner of a CODES who or which is:
. a citizen or resident of the United States;
. a corporation or partnership created or organized in or under the laws of
the United States or any political subdivision of the United States;
. an estate the income of which is subject to United States federal income
taxation regardless of its source; or
. a trust (1) that is subject to the primary supervision of a court within
the United States and the control of one or more United States persons as
defined in Section 7701(a)(30) of the Code or (2) that has a valid
election in effect under applicable Treasury regulations to be treated as
a United States person.
Accrual of interest
Under the Contingent Debt Regulations, you will be required to accrue
interest income on the CODES, in the amounts described below, regardless of
whether you use the cash or accrual method of tax accounting. Accordingly, you
will be required to include interest in taxable income in each year in excess
of the accruals on the CODES for non-tax purposes and in excess of any
contingent interest payments actually received in that year.
You will be required to accrue an amount of original issue discount for
United States federal income tax purposes, for each accrual period prior to
and including the maturity date of the CODES that equals:
. the product of (i) the adjusted issue price (as defined below) of the
CODES as of the beginning of the accrual period; and (ii) the comparable
yield to maturity (as defined below) of the CODES, adjusted for the
length of the accrual period;
. divided by the number of days in the accrual period; and
. multiplied by the number of days during the accrual period that you held
the CODES.
The original issue price of a CODES was the first price at which a
substantial amount of the CODES were sold to the public, excluding bond
houses, brokers or similar persons or organizations acting in the capacity of
underwriters, placement agents or wholesalers and was $1,000 per $1,000 of
initial principal amount. The adjusted issue price of a CODES will be its
original issue price increased by any original issue discount previously
accrued, determined without regard to any adjustments to original issue
discount accruals described below, and decreased by the projected amounts of
any contingent payments previously made with respect to the CODES.
Under the Contingent Debt Regulations, you will be required to include
original issue discount in income each year, regardless of your usual method
of tax accounting, based on the comparable yield of the CODES which we are
required to determine. We have determined the comparable yield of the CODES
based on the rate, as of the initial issue date, at which we would issue a
fixed rate nonconvertible debt instrument with no contingent payments but with
terms and conditions similar to the CODES, including the level of
subordination, term, timing of payments and general market conditions.
Accordingly, we have determined that the comparable yield is an annual rate of
5.90%, compounded semi-annually. The methodology for determining the
comparable yield of a convertible debt instrument such as the CODES is not
entirely clear under the Contingent Debt
37
Regulations. If our determination of the comparable yield were successfully
challenged by the IRS, the redetermined yield could be materially different
than the comparable yield determined by us.
A United States holder that purchases CODES in the secondary market will be
required to accrue interest income on the CODES in the same manner as a United
States holder that purchased CODES in the initial offering. In addition, if a
United States holder purchases CODES in the secondary market for an amount that
differs from the adjusted issue price of the CODES at the time of purchase,
such United States holder must reasonably determine whether the difference
between the purchase price of the CODES and the adjusted issue price of the
CODES is attributable to a change in interest rates since the CODES were
issued, a change in expectations as to the contingent amounts potentially
payable in respect of the CODES, or both, and allocate the difference
accordingly. To the extent that the difference is attributable to a change in
interest rates, it must be allocated to the daily portions of interest over the
remaining term of the CODES. To the extent that the difference is attributable
to a change in expectations as to the contingent amounts potentially payable in
respect of the CODES, it must be reasonably allocated to the remaining
projected contingent payments under the CODES. The amount of the difference
allocated to a daily portion of interest or to a projected payment is treated
as an adjustment on the day the daily portion accrues or the payment is made,
respectively. If the purchase price of the CODES was greater than the adjusted
issue price, an adjustment will be a "negative adjustment," and if the purchase
price was less than the adjusted issue price, an adjustment will be a "positive
adjustment." Any such negative or positive adjustment will decrease or
increase, respectively, the United States holder's adjusted tax basis in the
CODES.
Certain United States holders will receive Forms 1099-OID that report
interest accruals on their CODES. Those forms will not reflect the effect of
any positive or negative adjustments resulting from the United States holder's
purchase of CODES in the secondary market at a price different from adjusted
issue price of the CODES on the date of purchase. United States holders are
urged to consult their tax advisors as to whether, and how, such adjustments
should be taken into account in determining their interest accruals with regard
to the CODES.
We are required to furnish annually to you the comparable yield and, solely
for United States federal income tax purposes, a projected payment schedule
that includes the actual interest payments, if any, on the CODES and estimates
the amount and timing of contingent interest payments and payment upon maturity
on the CODES taking into account the fair market value of the common stock that
might be paid upon a conversion of the CODES. You may obtain the projected
payment schedule by submitting a written request for it to us at the address
set forth in "About This Prospectus." By purchasing the CODES, you agree in the
indenture to be bound by our determination of the comparable yield and
projected payment schedule. For United States federal income tax purposes, you
must use the comparable yield and the schedule of projected payments in
determining your original issue discount accruals, and the adjustments thereto
described below, in respect of the CODES.
The comparable yield and the projected payment schedule are not provided for
any purpose other than the determination of your original issue discount and
adjustments thereof in respect of the CODES and do not constitute a projection
or representation regarding the actual amount of the payments on a CODES.
Adjustments to interest accruals on the CODES
If the actual contingent payments made on the CODES differ from the
projected contingent payments, adjustments will be made to taxable income for
the difference for the year in which the contingent payment is made. If, during
any taxable year, you receive actual payments with respect to the CODES for
that taxable year that in an aggregate exceed the total amount of projected
payments for the taxable year, you will incur a net positive adjustment equal
to the amount of such excess. Such net positive adjustment will be treated as
additional original issue discount in such taxable year. For these purposes,
the payments in a taxable year include the fair market value of property
received in that year. If you receive in a taxable year actual payments
38
with respect to the CODES for that taxable year that in the aggregate are less
than the amount of projected payments for that taxable year, you will incur a
net negative adjustment equal to the amount of such deficit. A net negative
adjustment will:
. first, reduce the amount of original issue discount required to be
accrued in the current year;
. second, any negative adjustments that exceed the amount of original issue
discount accrued in the current year will be treated as ordinary loss to
the extent of your total prior original issue discount inclusions with
respect to the CODES (which includes any prior net positive adjustments),
reduced to the extent such original issue discount was offset by prior
net negative adjustments; and
. third, any excess negative adjustments will be treated as a regular
adjustment in the succeeding taxable year, and, if not used by the time
the CODES is sold or matures, is treated as a reduction in the amount
realized on sale, exchange or retirement.
A United States holder that purchases CODES in the secondary market will be
required to make the adjustments to interest accruals described herein in the
same manner as a U.S. holder that purchased the CODES in the initial offering.
Sale, exchange, conversion or redemption
Upon the sale, exchange, conversion, repurchase or redemption of a CODES,
you will recognize taxable gain or loss. As a holder of a CODES, you agree that
under the Contingent Debt Regulations, we will treat the fair market value of
our stock that you receive on conversion as a contingent payment. The amount of
taxable gain or loss on a sale, exchange, conversion, repurchase or redemption
will equal the difference between: (a) the amount of cash plus the fair market
of any other property you receive including the fair market value of any shares
of common stock you receive, and (b) your adjusted tax basis in the CODES. Your
adjusted basis in a CODES generally will equal your original purchase price for
the CODES, increased by any original issue discount previously accrued
(determined without regard to any net positive or net negative adjustments to
interest accruals relating to adjustments made when actual contingent payments
made on the CODES differ from projected contingent payments, as described above
under "Accruals of interest") and decreased by the projected amount of any
payments previously scheduled to be made on the CODES. In the case of a United
States holder that purchased the CODES in the secondary market for an amount
that differs from the adjusted issue price of the CODES at the time of
purchase, any negative or positive adjustment relating to the allocation of
such difference as described above under "Accruals of Interest" will decrease
or increase, respectively, the United States holder's adjusted tax basis in the
CODES.
Gain recognized on the sale, exchange, conversion or redemption of a CODES
will generally be treated as ordinary interest income; any loss will be
ordinary loss to the extent your total interest income inclusions (including
any positive adjustments attributable to variances between actual contingent
payments made on the CODES and projected contingent payments, as described
above under "Adjustments to interest accruals on the CODES," and any positive
adjustments attributable to differences between adjusted issue price and
acquisition price in the case of United States holders that purchased CODES in
the secondary market, as described above under "Accruals of interest" ) exceed
the total net negative adjustments (including any adjustments attributable to
variances between actual contingent payments made on the CODES and projected
contingent payments, as described above under "Adjustments to interest accruals
on the CODES," and any adjustments attributable to differences between adjusted
issue price and acquisition price in the case of United States holders that
purchased CODES in the secondary market, as described above under "Accruals of
interest") on a CODES, and thereafter, capital loss (which will be long-term if
a CODES is held for more than one year). The deductibility of net capital
losses is subject to limitations.
Your tax basis in the common stock received upon conversion of a CODES will
equal the then current fair market value of such common stock. Your holding
period for our common stock received will commence on the day of conversion.
39
Given the uncertain tax treatment of instruments such as CODES, you should
consult your tax advisers concerning the tax treatment on conversion of a CODES
and the ownership of the common stock.
Constructive distributions
The conversion price of the CODES will be adjusted in certain circumstances.
Under section 305(c) of the Code, adjustments (or failures to make adjustments)
that have the effect of increasing your proportionate interest in our assets or
earnings may in some circumstances result in a deemed distribution to you. Any
deemed distributions will be taxable as a dividend, return of capital, or
capital gain in accordance with the earnings and profits rules under the Code.
Non-United States Holders
The following is a summary of the United States federal tax consequences
that will apply to you if you are a non-United States holder of CODES or shares
of common stock. The term "non-United States holder" means a beneficial owner
of a CODES that is not a United States holder.
Special rules may apply to certain non-United States holders such as
"controlled foreign corporations," "passive foreign investment companies,"
"foreign personal holding companies," corporations that accumulate earnings to
avoid federal income tax or, in certain circumstances, United States
expatriates. Such non-United States holders should consult their own tax
advisors to determine the United States federal, state, local and other tax
consequences that may be relevant to them.
Payments with respect to the CODES
The 30% United States federal withholding tax will not apply to any payment
to you of principal or interest (including amounts taken into income under the
accrual rules described above under "-- United States Holders" and a payment of
common stock pursuant to a conversion) on a CODES, provided that:
. you do not actually or constructively own 10% or more of the total
combined voting power of all classes of our stock that are entitled to
vote within the meaning of Section 871(h)(3) of the Code;
. you are not a controlled foreign corporation that is related to us
through stock ownership;
. you are not a bank whose receipt of interest (including original issue
discount) on a CODES is described in Section 881(c)(3)(A) of the Code;
. our common stock continues to be actively traded within the meaning of
Section 871(h)(4)(C)(v)(1) of the Code and we are not a "United States
real property holding corporation;" and
. (a) you provide your name and address, and certify, under penalties of
perjury, that you are not a United States person (which certification may
be made on an IRS Form W-8BEN (or successor form)) or (b) you hold your
CODES through certain foreign intermediaries and you satisfy the
certification requirements of applicable Treasury regulations. Special
certification rules apply to holders that are pass-through entities.
If you cannot satisfy the requirements described above, payments of interest
(including original issue discount) will be subject to the 30% United States
federal withholding tax, unless you provide us with a properly executed (1) IRS
Form W-8BEN (or successor form) claiming an exemption from or reduction in
withholding under the benefit of an applicable tax treaty or (2) IRS Form W-
8ECI (or successor form) stating that interest (including original issue
discount) paid on the CODES is not subject to withholding tax because it is
effectively connected with your conduct of a trade or business in the United
States.
If you are engaged in a trade or business in the United States and interest
(including original issue discount) on a CODES is effectively connected with
the conduct of that trade or business, you will be subject to United States
federal income tax on that interest on a net income basis (although exempt from
the 30% withholding tax) in the same manner as if you were a United States
person as defined under the Code, subject
40
to any modification provided under an applicable income tax treaty. In
addition, if you are a foreign corporation, you may be subject to a "branch
profits tax" equal to 30% (or lower applicable treaty rate) of your earnings
and profits for the taxable year, subject to adjustments, that are effectively
connected with your conduct of a trade or business in the United States. For
this purpose, interest (including original issue discount) will be included in
the earnings and profits of such foreign corporation.
The 30% United States federal withholding tax may not be avoided by
satisfying the conditions in the five bullet points set out above to the extent
interest on the CODES is adjusted to equal the adjusted interest rate, as
described above under "Description of the CODES--Interest Rate Adjustment." In
such a case, the interest would likely be described in section 871(h)(4)(A) of
the Code and therefore would not be eligible for the exemption from withholding
generally provided under section 871(h) of the Code, to which the five bullet
points relate. However, withholding could be reduced or eliminated in the
manner described in the paragraph immediately following the five bullet points
above.
Payments on common stock and constructive dividends
Any dividends paid to you with respect to the shares of common stock (and
any deemed dividends resulting from certain adjustments, or failure to make
adjustments, to the number of shares of common stock to be issued upon
conversion, see "--Constructive Distributions" above) will be subject to United
States federal withholding tax at a 30% rate or such lower rate as may be
specified by an applicable income tax treaty. However, dividends that are
effectively connected with the conduct of a trade or business within the United
States or, where a tax treaty applies, dividends that are attributable to a
United States permanent establishment, are not subject to the withholding tax,
but instead are subject to United States federal income tax on a net income
basis at applicable graduated individual or corporate rates. Certain
certification and disclosure requirements must be complied with in order for
effectively connected income to be exempt from withholding. Any such
effectively connected dividends received by a foreign corporation may, under
certain circumstances, be subject to an additional "branch profits tax" at a
30% rate or such lower rate as may be specified by an applicable income tax
treaty.
A non-United States holder of shares of common stock who wishes to claim the
benefit of an applicable treaty rate is required to satisfy applicable
certification and other requirements. If you are eligible for a reduced rate of
United States federal withholding tax pursuant to an income tax treaty, you may
obtain a refund of any excess amounts withheld by filing an appropriate claim
for refund with the IRS.
As more fully described under "Description of CODES--Registration Rights,"
upon the occurrence of certain enumerated events we may be required to pay
additional amounts to you. Payments of such additional amounts to holders of
common stock will be subject to federal withholding.
Sale, exchange or redemption of shares of common stock
Any gain realized upon the sale, exchange, redemption or other disposition
of a share of common stock generally will not be subject to United States
federal income tax unless:
. that gain is effectively connected with the conduct of a trade or
business in the United States by you,
. you are an individual who is present in the United States for 183 days or
more in the taxable year of that disposition, and certain other
conditions are met, or
. we are or have been a "United States real property holding corporation"
for United States federal income tax purposes.
An individual non-United States holder described in the first bullet point
above will be subject to United States federal income tax on the net gain
derived from the sale. A non-United States holder that is a foreign corporation
and is described in the first bullet point above will be subject to tax on gain
under regular
41
graduated United States federal income tax rates. In addition, a non-United
States holder that is a foreign corporation and is described in the first
bullet point above may be subject to a "branch profits tax" at a 30% rate or a
lower rate if so specified by an applicable income tax treaty. An individual
non-United States holder described in the second bullet point above will be
subject to a flat 30% United States federal income tax unless an applicable
income tax treaty exempts the gain from U.S. income tax or provides for a
reduced rate on the gain derived from the sale, which may be offset by United
States source capital losses, even though the holder is not considered a
resident of the United States.
We believe that we are not and do not anticipate becoming a "United States
real property holding corporation" for United States federal income tax
purposes. If we are or become a "United States real property holding
corporation" and our common stock is and continues to be regularly traded on an
established securities market only a non-United States holder of common stock
who holds or held (at any time during the shorter of the five year period
preceding the date of disposition or the holder's holding period) more than
five percent of our common stock will be subject to United States federal
income tax on the disposition of our common stock.
United States federal estate tax
The United States federal estate tax will not apply to CODES owned by you at
the time of your death, provided that (1) you do not own 10% or more of the
total combined voting power of all classes of our voting stock (within the
meaning of the Code and the United States Treasury regulations) and (2)
interest on the CODES would not have been, if received at the time of your
death, effectively connected with your conduct of a trade or business in the
United States. However, shares of common stock held by you at the time of your
death will be included in your gross estate for United States federal estate
tax purposes unless an applicable estate tax treaty provides otherwise.
Backup Withholding and Information Reporting
If you are a United States holder of CODES, information reporting
requirements will generally apply to all payments we make to you and to the
proceeds from a sale of a CODES or share of common stock made to you, unless
you are an exempt recipient such as a corporation. A backup withholding tax
will apply to those payments if you fail to provide a taxpayer identification
number, or a certification of exempt status, or if you fail to report in full
interest income.
In general, if you are a non-United States holder you will not be subject to
backup withholding and information reporting with respect to payments that we
make to you provided that we do not have actual knowledge or reason to know
that you are a United States person and you have given us the statement
described above under "--Non-United States Holders--Payments With Respect to
the CODES." We must report annually to the IRS and to each non-United States
holder the amount of dividends paid to such holder and the tax withheld with
respect to such dividends, regardless of whether withholding was required.
Copies of these information returns may also be made available under the
provisions of a specific treaty or agreement to the tax authorities of the
country in which the non-United States holder resides.
In addition, if you are a non-United States holder you will not be subject
to backup withholding or information reporting with respect to the proceeds of
the sale of a CODES or share of common stock within the United States or
conducted through certain United States-related financial intermediaries, if
the payor receives the statement described above and does not have actual
knowledge that you are a United States person, as defined under the Code, or
you otherwise establish an exemption.
Any amounts withheld under the backup withholding rules will be allowed as a
refund or a credit against your United States federal income tax liability
provided the required information is furnished to the IRS.
42
SELLING HOLDERS AND PLAN OF DISTRIBUTION
The CODES were originally issued by us and sold by Lehman Brothers Inc.,
Credit Suisse First Boston Corporation, Banc of America Securities LLC, ABN
AMRO Rothschild LLC and UBS Warburg LLC (the "initial purchasers") in
transactions exempt from the registration requirements of the Securities Act to
persons reasonably believed by the initial purchasers to be "qualified
institutional buyers" as defined by Rule 144A under the Securities Act. The
selling holders may from time to time offer and sell pursuant to this
prospectus any or all of the CODES listed below and the shares of common stock
issued upon conversion of such CODES. When we refer to the "selling holders" in
this prospectus, we mean those persons listed in the table below, as well as
the pledgees, donees, assignees, transferees, successors and others who later
hold any of the selling holders' interests, provided that those interests still
are "restricted securities" as defined in the registration rights agreement.
The table below sets forth the name of each selling holder, the principal
amount of CODES that each selling holder may offer pursuant to this prospectus
and the number of shares of common stock into which such CODES may be
converted. Unless set forth below, to our knowledge and based on information
provided by the selling holders, none of the selling holders has, or within the
past three years has had, any material relationship with us or any of our
predecessors or affiliates or beneficially owns in excess of 1% of our
outstanding common stock.
The principal amounts of the CODES provided in the table below are based on
information provided to us by each of the selling holders as of December 6,
2001, and the percentages are based on $300,000,000 principal amount of CODES
outstanding. The number of shares of common stock that may be sold is
calculated based on the current conversion rate of 32.7955 shares of common
stock per $1,000 principal amount of the CODES.
Since the date on which each selling holder provided this information, each
selling holder identified below may have sold, transferred or otherwise
disposed of all or a portion of the selling holder's CODES in a transaction
exempt from registration under the Securities Act. Information concerning the
selling holders may change from time to time and any changed information will
be set forth in supplements to this prospectus to the extent required. In
addition, the conversion ratio, and therefore the number of shares of our
common stock issuable upon conversion of the CODES, is subject to adjustment.
Accordingly, the number of shares of common stock issuable upon conversion of
the CODES may increase or decrease.
The selling holders may from time to time offer and sell any or all of the
securities under this prospectus. Because the selling holders are not obligated
to sell the CODES or the shares of common stock issuable upon conversion of the
CODES, we cannot estimate the amount of CODES or how many shares of common
stock that the selling holders will hold upon consummation of any sales.
Number of Shares Percentage of
Aggregate Principal Percentage of of Common Stock Shares of
Amount of CODES CODES That May Be Common Stock
Name That May Be Sold Outstanding Sold(1) Outstanding(2)
---- ------------------- ------------- ---------------- --------------
Acacia Life Insurance
Company................ 190,000 * 6,231 *
AIG/National Union Fire
Insurance.............. 750,000 * 24,597 *
Allstate Life Insurance
Company (5)............ 2,150,000 * 70,510 *
Allstate Insurance
Company (5)............ 1,250,000 * 40,994 *
Aloha Airlines Non-
Pilots Pension Trust... 185,000 * 6,067 *
Aloha Pilots Retirement
Trust.................. 105,000 * 3,444 *
American Booksellers.... 15,000 * 492 *
American Country
Insurance Company...... 500,000 * 16,398 *
American Fidelity
Assurance Company...... 225,000 * 7,379 *
American Founders Life
Insurance Company...... 380,000 * 12,462 *
43
Number of Shares Percentage of
Aggregate Principal Percentage of of Common Stock Shares of
Amount of CODES CODES That May Be Common Stock
Name That May Be Sold Outstanding Sold(1) Outstanding(2)
---- ------------------- ------------- ---------------- --------------
American Investors Life
Insurance Company...... 400,000 * 13,118 *
American Pioneer Life
Insurance Company of
New York............... 70,000 * 2,296 *
American Progressive
Life and Health
Insurance Company of
New York............... 70,000 * 2,296 *
American Samoa
Government............. 47,000 * 1,541 *
Amerisure
Companies/Michigan
Mutual Insurance
Company................ 375,000 * 12,298 *
Ameritas Life Insurance
Company................ 310,000 * 10,167 *
AmerUs Life Insurance
Co..................... 1,000,000 * 32,796 *
Arkansas PERS........... 1,225,000 * 40,174 *
Baltimore Life Insurance
Company................ 280,000 * 9,183 *
Banc of America
Securities LLC (6)
(7).................... 1,900,000 * 62,311 *
Bank Austria Cayman
Islands LTD............ 7,360,000 2.45% 241,375 *
Bank One Trust Co.,
N.A.................... 300,000 * 9,839 *
Bay County PERS......... 160,000 * 5,247 *
BCS Life Insurance
Company................ 580,000 * 19,021 *
BN Convertible
Securities Top Fund.... 400,000 * 13,118 *
BNP Paribas Equity
Strategies, SNC (5).... 4,000,000 1.33% 131,182 *
Boilermakers Blacksmith
Pension Trust.......... 1,550,000 * 50,833 *
BP Amoco PLC Master
Trust.................. 1,045,000 * 34,271 *
Buckeye State Mutual
Insurance Co........... 20,000 * 656 *
C & H Sugar Company
Inc.................... 250,000 * 8,199 *
CALAMOS Market Neutral
Fund--CALAMOS
Investment Trust....... 13,000,000 4.33% 426,342 *
California State Auto
Assoc. Inter-
Insurance.............. 280,000 * 9,183 *
California State Auto
Assoc. Retirement
Pension Plan........... 60,000 * 1,968 *
CapitalCare, Inc........ 60,000 * 1,968 *
CareFirst of Maryland,
Inc.................... 250,000 * 8,199 *
Catholic Family Life
Insurance Company...... 300,000 * 9,839 *
Catholic Mutual Relief
Society of America..... 400,000 * 13,118 *
Catholic Relief
Insurance Company of
America................ 550,000 * 18,038 *
Celina Mutual Insurance
Company................ 15,000 * 492 *
Central States Health
and Life Company of
Omaha.................. 300,000 * 9,839 *
Charitable Convertible
Securities Fund........ 790,000 * 25,908 *
Charitable Income Fund.. 140,000 * 4,591 *
Chrysler Corporation
Master Retirement
Trust.................. 5,300,000 1.77% 173,816 *
City of Birmingham
Retirement & Relief
System................. 950,000 * 31,156 *
Colgate-Palmolive
Company Retirement
Trust.................. 1,500,000 * 49,193 *
Colonial Life Insurance
Company of Texas....... 40,000 * 1,312 *
44
Number of Shares Percentage of
Aggregate Principal Percentage of of Common Stock Shares of
Amount of CODES CODES That May Be Common Stock
Name That May Be Sold Outstanding Sold(1) Outstanding(2)
---- ------------------- ------------- ---------------- --------------
Concord Life Insurance
Company................... 90,000 * 2,952 *
Conseco Annuity Assurance
Multi-Bucket Annuity
Convertible Bond Fund..... 3,000,000 1.00% 98,387 *
Consulting Group Capital
Markets Funds............. 500,000 * 16,398 *
Convertible Securities
Fund...................... 200,000 * 6,559 *
Credit Suisse First Boston
Corporation (6) (7)....... 745,000 * 24,433 *
CSA Fraternal Life
Insurance Company......... 90,000 * 2,952 *
Dakota Truck Underwriters.. 25,000 * 820 *
Delaware PERS.............. 1,725,000 * 56,572 *
Delta Air Lines Master
Trust
(c/o Oaktree Capital
Management, LLC).......... 1,410,000 * 46,242 *
Delta Pilots D&S Trust
(c/o Oaktree Capital
Management, LLC).......... 710,000 * 23,285 *
Deutsche Banc Alex Brown
Inc. (7).................. 29,400,000 9.80% 964,188 *
DKR Fixed Income Holding
Fund Ltd.................. 3,000,000 1.00% 98,387 *
DNB Investment............. 750,000 * 24,597 *
Dodeca Fund, L.P........... 1,600,000 * 52,473 *
Dorinco Reinsurance
Company................... 1,100,000 * 36,075 *
Drury University........... 75,000 * 2,460 *
Duke Endowment............. 310,000 * 10,167 *
EB Convertible Securities
Fund...................... 835,000 * 27,384 *
Educators Mutual Life
Insurance Company......... 200,000 * 6,559 *
Equity & Convertibles
Fund...................... 1,400,000 * 45,914 *
Farmers Mutual Protective
Association of Texas...... 110,000 * 3,608 *
Federated Rural Electric
Insurance Exchange........ 450,000 * 14,758 *
Field Foundation of
Illinois.................. 40,000 * 1,312 *
First Dakota Indemnity
Company................... 15,000 * 492 *
First Mercury Insurance
Company................... 530,000 * 17,382 *
First Union International
Capital Markets Inc....... 7,500,000 2.50% 245,966 *
FreeState Health Plan,
Inc....................... 60,000 * 1,968 *
Froley Revy Investment
Convertible Security
Fund...................... 175,000 * 5,739 *
GenCorp Foundation......... 35,000 * 1,148 *
Genesee County Employees'
Retirement System......... 350,000 * 11,478 *
Global Bermuda Limited
Partnership............... 2,200,000 * 72,150 *
Golden Rule Insurance
Company................... 500,000 * 16,398 *
Goodville Mutual Casualty
Company................... 40,000 * 1,312 *
Grain Dealers Mutual
Insurance................. 150,000 * 4,919 *
Group Hospitalization and
Medical Services, Inc..... 275,000 * 9,019 *
Guarantee Trust Life
Insurance Company......... 500,000 * 16,398 *
Hannover Life Reassurance
Company of America........ 1,250,000 * 40,994 *
Hawaiian Airlines Pension
Plan for Salaried
Employees................. 15,000 * 492 *
45
Number of Shares Percentage of
Aggregate Principal Percentage of of Common Stock Shares of
Amount of CODES CODES That May Be Common Stock
Name That May Be Sold Outstanding Sold(1) Outstanding(2)
---- ------------------- ------------- ---------------- --------------
Hawaiian Airlines Pilots
Retirement Plan........ 165,000 * 5,411 *
Hawiaan Airlines
Employees Pension
Plan--IAM.............. 80,000 * 2,624 *
Health Foundation of
Greater Cincinnati..... 130,000 * 4,263 *
HealthNow New York,
Inc.................... 140,000 * 4,591 *
HFR CA Select Fund...... 350,000 * 11,478 *
HFR Master Fund, LTD.... 75,000 * 2,460 *
Hotel Union & Hotel
Industry of Hawaii..... 532,000 * 17,447 *
ICI American Holdings
Trust.................. 625,000 * 20,497 *
IL Annuity and Insurance
Company................ 1,000,000 * 32,796 *
Indiana Lumbermen's
Mutual Insurance
Company................ 450,000 * 14,758 *
Integrity Mutual
Insurance Company...... 300,000 * 9,839 *
ISBA Mutual Insurance
Company................ 210,000 * 6,887 *
Jackson County
Employees' Retirement
System................. 180,000 * 5,903 *
James Campbell
Corporation............ 400,000 * 13,118 *
Jefferies & Company Inc.
(7).................... 11,000 * 361 *
Julius Baer Multibond
Convertbond............ 500,000 * 16,398 *
Kanawha Insurance
Company................ 800,000 * 26,236 *
KBC Finanical Products
USA Inc. (7) .......... 100,000 * 3,280 *
Key Trust Convertible
Securities Fund........ 135,000 * 4,427 *
Key Trust Fixed Income
Fund................... 215,000 * 7,051 *
Lakeshore International,
Ltd.................... 8,800,000 2.93% 288,600 *
Landmark Life Insurance
Company................ 80,000 * 2,624 *
Lehman Brothers Inc. (6)
(7) ................... 41,500,000 13.83% 1,361,013 1.27%
Lincoln Heritage Life
Insurance Company...... 100,000 * 3,280 *
Lincoln
Individual/Memorial
Life Insurance
Company................ 70,000 * 2,296 *
Louisiana CCRF.......... 350,000 * 11,478 *
Loyal Christian Benefit
Association............ 120,000 * 3,935 *
Lutheran Brotherhood
(7).................... 750,000 * 24,597 *
Macomb County Employees'
Retirement System...... 475,000 * 15,578 *
Marquette Indemnity and
Life Insurance
Company................ 80,000 * 2,624 *
Maryland State
Retirement Fund........ 3,300,000 1.10% 108,225 *
Medico Life Insurance
Company................ 550,000 * 18,038 *
Medmarc Insurance
Company................ 300,000 * 9,839 *
Michigan Mutual
Insurance Co........... 1,200,000 * 39,355 *
Michigan Professional
Insurance Exchange..... 100,000 * 3,280 *
Microsoft Corporation... 2,040,000 * 66,903 *
Middle Cities Risk
Management Trust....... 150,000 * 4,919 *
Midwest Security Life... 170,000 * 5,575 *
MILIC/Woodsmill Limited
#1..................... 15,000 * 492 *
MILIC/Woodsmill Limited
#2..................... 10,000 * 328 *
Morgan Stanley & Co.
(7).................... 20,000,000 6.67% 655,910 *
Morgan Stanley Dean
Witter Convertible
Securities Trust....... 2,250,000 * 73,790 *
46
Number of Shares Percentage of
Aggregate Principal Percentage of of Common Stock Shares of
Amount of CODES CODES That May Be Common Stock
Name That May Be Sold Outstanding Sold(1) Outstanding(2)
---- ------------------- ------------- ---------------- --------------
Motion Picture Industry
Health Plan--Active
Member Fund............ 490,000 * 16,070 *
Motion Picture Industry
Health Plan--Retiree
Member Fund............ 210,000 * 6,887 *
Mutual Protective
Insurance Company...... 1,000,000 * 32,796 *
National Mutual
Insurance Company...... 30,000 * 984 *
Nations Convertible
Securities Fund........ 6,400,000 2.13% 209,891 *
NCMIC................... 300,000 * 9,839 *
New Era Life Insurance
Company................ 240,000 * 7,871 *
NORCAL Mutual Insurance
Company................ 375,000 * 12,298 *
OCM Convertible Trust... 3,075,000 1.03% 100,846 *
Oklahoma Attorneys
Mutual Insurance
Company................ 40,000 * 1,312 *
Ondeo Nalco............. 190,000 * 6,231 *
Parker Key/Convertible.. 215,000 * 7,051 *
Partner Reinsurance
Company Ltd............ 1,010,000 * 33,123 *
Phico Insurance
Company................ 590,000 * 19,349 *
Physicians Life
Insurance Company...... 550,000 * 18,038 *
Physicians Mutual
Insurance Company...... 600,000 * 19,677 *
Physicians' Reciprocal
Insurers' Account #7... 1,350,000 * 44,274 *
Pioneer Insurance
Company................ 60,000 * 1,968 *
Potlatch................ 560,000 * 18,365 *
Premera Blue Cross...... 1,300,000 * 42,634 *
Quattro Fund............ 2,000,000 * 65,591 *
Qwest Occupational
Health Trust........... 200,000 * 6,559 *
Ramius Capital Group.... 425,000 * 13,938 *
RCG Halifax Master Fund,
LTD.................... 250,000 * 8,199 *
RCG Latitude Master Fund
LTD.................... 1,740,000 * 57,064 *
RCG Multi Strategy LP... 725,000 * 23,777 *
Saloman Brothers Asset
Management, Inc........ 20,000,000 6.67% 655,910 *
San Diego County
Employees Retirement
Association............ 2,150,000 * 70,510 *
Scor Life Re Convertible
Program................ 380,000 * 12,462 *
Southern Farm Bureau
Life Insurance......... 775,000 * 25,417 *
Southern Farm Bureau
Life Insurance
Company................ 1,000,000 * 32,796 *
Standard Mutual
Insurance Company...... 230,000 * 7,543 *
Starvest Combined
Portfolio.............. 800,000 * 26,236 *
Starvest Managed
Portfolio.............. 60,000 * 1,968 *
State Employees'
Retirement Fund of the
State of Delaware...... 2,105,000 * 69,035 *
State National Insurance
Company................ 100,000 * 3,280 *
State of Connecticut
Combined Investment
Funds.................. 5,250,000 1.75% 172,176 *
State of Florida
Division of Treasury... 2,000,000 * 65,591 *
State of Florida, Office
of the Treasurer....... 1,500,000 * 49,193 *
State of Oregon--
Equity................. 5,000,000 1.67% 163,978 *
State of Oregon/SAIF
Corporation............ 6,250,000 2.08% 204,972 *
Syngenta AG............. 300,000 * 9,839 *
47
Number of Shares Percentage of
Aggregate Principal Percentage of of Common Stock Shares of
Amount of CODES CODES That May Be Common Stock
Name That May Be Sold Outstanding Sold(1) Outstanding(2)
---- ------------------- ------------- ---------------- --------------
Texas Builders Insurance
Company................ 170,000 * 5,575 *
Texas Hospital Insurance
Exchange............... 20,000 * 656 *
The Cockrell
Foundation............. 100,000 * 3,280 *
The Estate of James
Campbell............... 302,000 * 9,904 *
The Gabelli Convertible
Securities Fund, Inc... 50,000 * 1,640 *
The Green Tree Perpetual
Assurance Company...... 240,000 * 7,871 *
The Philanthropic Mutual
Life Insurance
Company................ 80,000 * 2,624 *
Transguard Insurance
Company of America,
Inc.................... 690,000 * 22,629 *
Tribeca Investments
L.L.C.................. 1,000,000 * 32,796 *
Tuscarora Wayne Mutual
Insurance Company...... 80,000 * 2,624 *
UBS O'Connor LLC F/B/O
O'Connor Global
Convertible Portfolio.. 250,000 * 8,199 *
UBS O'Connor LLC F/B/O
UBS Global Equity
Arbitrage Master Ltd... 6,000,000 2.00% 196,773 *
Union Security Life
Insurance Co........... 30,000 * 984 *
United National
Insurance Company...... 700,000 * 22,957 *
U.S. Olympic
Foundation............. 700,000 * 22,957 *
Vesta-Inex Insurance
Exchange IASA.......... 300,000 * 9,839 *
Viacom Inc. Pension Plan
Master Trust........... 48,000 * 1,574 *
Victory Convertible
Securities Fund........ 520,000 * 17,054 *
West Virginia Fire
Insurance Company...... 5,000 * 164 *
Western Home Insurance
Company................ 90,000 * 2,952 *
Westward Life Insurance
Company................ 120,000 * 3,935 *
Wisconsin Lawyers Mutual
Insurance Company...... 150,000 * 4,919 *
Wisconsin Mutual
Insurance Company...... 130,000 * 4,263 *
Y & H Soda Foundation... 80,000 * 2,624 *
Zazove Hedged
Convertible Fund L.P... 1,700,000 * 55,752 *
Zazove Income Fund
L.P.................... 2,300,000 * 75,430 *
Zeneca Holdings Trust... 425,000 * 13,938 *
Zurich Institutional
Benchmarks............. 515,000 * 16,890 *
Zurich Institutional
Benchmarks Master Fund
Ltd.................... 1,200,000 * 39,355 *
------------ ------ --------- ----
Subtotal (5)............ $291,015,000 97.00% 9,543,982 8.25%
------------ ------ --------- ----
All other holders of
convertible notes or
future transferees,
pledgees, donees,
assignees or successors
of any such holders (3)
(4).................... $ 8,985,000 3.00% 294,668 0.28%
------------ ------ --------- ----
Total (5)............... $300,000,000 100.00% 9,838,650 8.48%
============ ====== ========= ====
- --------
* Less than 1%
(1) Assumes conversion of all of the holders CODES at a conversion rate of
32.7955 shares of common stock per $1,000 principal amount of CODES. The
conversion rate is subject to adjustment as described under "Description of
the CODES -- Conversion Rights -- Conversion Price Adjustments." As a
result, the number of shares of common stock issuable upon conversion of
the CODES may increase or decrease in the future.
48
(2) Calculated based on Rule 13d-3(d)(1) under the Exchange Act, using
106,129,455 shares of common stock outstanding as of December 7, 2001. In
calculating this amount for each holder or group, we treated as
outstanding the number of shares of common stock issuable upon conversion
of all of the CODES owned by that holder or group, but we did not assume
the conversion of CODES owned by any other holder or group.
(3) Only selling holders identified above who beneficially own the convertible
notes set forth opposite their names in the foregoing table on the
effective date of the registration statement of which this prospectus is a
part may sell the convertible notes or shares of common stock issuable
upon conversion of the convertible notes pursuant to the registration
statement. Prior to any use of the prospectus in connection
with the offering of convertible notes or common stock by any holder not
identified above, this prospectus will be amended as required to set forth
the name and principal amount or number of securities to be offered.
(4) Assumes that any other holders of the convertible notes or any future
pledgees, donees assignees, transferees or successors of or from any other
such holders of the CODES do not beneficially own any shares of common
stock other than the common stock issuable upon conversion of the CODES at
the current conversion rate.
(5) The shares shown for this holder or group does not include (a) 50,691
shares of outstanding common stock beneficially owned by BNP Paribas
Equity Strategies, SNC as of November 14, 2001 and (b) 39,100 shares of
outstanding common stock held by Allstate Insurance Company, 2,100 shares
held by Allstate Life Insurance Company and 25,600 shares held by other
Allstate affiliates, all as of December 19, 2001.
(6) Lehman Brothers Inc. was an initial purchaser (and the representative of
the initial purchasers) in connection with the initial private sale of
the CODES and the reoffering pursuant to Rule 144A. Credit Suisse First
Boston Corporation and Banc of America Securities LLC were also initial
purchasers and co-managers of the Rule 144A offering.
(7) These selling holders are also broker-dealers, so they are deemed to be
"underwriters" within the meaning of the Securities Act. We have been
advised that, with respect to any selling holders who are affiliates of
broker-dealers, (1) the selling holder purchased the CODES in the
ordinary course of business and (2) at the time of the purchase of the
CODES to be resold, the selling holder had no agreements or
understandings, directly or indirectly, with any person to distribute the
CODES or the underlying common stock.
49
The selling holders will be offering and selling all of the securities
offered and sold under this prospectus. We will not receive any of the proceeds
from the offering of the CODES or the shares of common stock by the selling
holders. In connection with the initial sales of the CODES, we entered into the
registration rights agreement with the initial purchasers. Securities may only
be offered or sold under this prospectus pursuant to the terms of the
registration rights agreement. However, selling holders may resell all or a
portion of the securities in open market transactions in reliance upon Rule 144
or Rule 144A under the Securities Act, provided that they meet the criteria and
conform to the requirements of those rules. We are registering the CODES and
shares of common stock covered by this prospectus in order to permit holders to
sell the securities publicly from time to time, provided that this prospectus
does not cover resales of securities that are no longer "restricted securities"
as defined in the registration rights agreement. We have agreed, among other
things, to bear all expenses, other than underwriting discounts and selling
commissions, in connection with the registration and sale of the CODES and
shares of common stock covered by this prospectus. We estimate those expenses
to be approximately $125,000, excluding expenses associated with the original
issuance of the CODES.
The selling holders may sell all or a portion of the CODES and any shares of
common stock received upon conversion beneficially owned by them and offered
hereby from time to time:
. directly; or
. through underwriters, broker-dealers or agents, who may receive
compensation in the form of discounts, commissions or concessions from
the selling holders and/or from the purchasers of the CODES and shares of
common stock for whom they may act as agent.
The CODES and the shares of common stock received upon conversion may be
sold from time to time in one or more transactions at:
. fixed prices, which may be changed;
. prevailing market prices at the time of sale;
. varying prices determined at the time of sale; or
. negotiated prices.
These prices will be determined by the selling holders or by agreement
between the selling holders and underwriters or dealers who may receive fees or
commissions in connection with the sale. The aggregate proceeds to the selling
holders from the sale of the CODES or shares of common stock offered by them
will be the purchase price of the CODES or shares of common stock less
discounts and commissions, if any.
The sales described in the preceding paragraph may be effected in
transactions:
. on any national securities exchange or quotation service on which the
CODES or shares of common stock may be listed or quoted at the time of
sale, including the New York Stock Exchange in the case of the shares of
common stock;
. in the over-the-counter market;
. in transactions otherwise than on such exchanges or services or in the
over-the-counter market; or
. through the writing of options.
These transactions may include block transactions or crosses. Crosses are
transactions in which the same broker acts as an agent on both sides of the
trade.
In connection with sales of the CODES and shares of common stock or
otherwise, the selling holders may enter into hedging transactions with broker-
dealers. These broker-dealers may in turn engage in short sales of the CODES
and shares of common stock in the course of hedging their positions. The
selling holders may also
50
sell the CODES and shares of common stock short and deliver the CODES and
shares of common stock to close out short positions, or loan or pledge CODES
and shares of common stock to broker-dealers that in turn may sell the CODES
and shares of common stock.
To our knowledge, there are currently no plans, arrangements or
understandings between any selling holders and any underwriter, broker-dealer
or agent regarding the sale of the CODES and the shares of common stock by the
selling holders. Selling holders may not sell any, or may not sell all, of the
CODES and the shares of common stock offered by them pursuant to this
prospectus. In addition, we cannot assure you that a selling holder will not
transfer, devise or give the CODES and the shares of common stock by other
means not described in this prospectus. In addition, any securities covered by
this prospectus that qualify for sale pursuant to Rule 144 or Rule 144A of the
Securities Act may be sold under one of those rules rather than pursuant to
this prospectus.
Our common stock is listed and traded on the New York Stock Exchange. The
CODES are a recent issue with no established public trading market. We do not
intend to apply for the CODES to be listed on any securities exchange or to be
quoted on any automated quotation system. The initial purchasers advised us
that they intend to make a market in the CODES, but they are not obligated to
do so and may discontinue market making at any time without notice. The CODES
issued in the private placement are eligible for trading in the PORTAL market.
However, the CODES sold using this prospectus are not eligible for PORTAL and
there is no other market for those CODES. Accordingly, we cannot give you any
assurance as to the liquidity of the trading market for the CODES.
The selling holders who are also broker-dealers are deemed to be
"underwriters" within the meaning of the Securities Act. We have been advised
that, with respect to any selling holders who are affiliates of broker-dealers,
(1) the selling holder purchased the CODES in the ordinary course of business
and (2) at the time of the purchase of the CODES to be resold, the selling
holder had no agreements or understandings, directly or indirectly, with any
person to distribute the CODES or the underlying common stock.
The other selling holders and any broker and any broker-dealers, agents or
underwriters that participate with the selling holders in the distribution of
the CODES or the shares of common stock may be deemed to be "underwriters"
within the meaning of the Securities Act. If so, any commissions received by
these broker-dealers, agents or underwriters and any profit on the resale of
the CODES or the shares of common stock purchased by them may be deemed
underwriting commissions or discounts under the Securities Act. In addition,
any profits realized by the selling holders may be deemed to be underwriting
discounts and commissions under the Securities Act. To the extent the selling
holders may be deemed to be underwriters, the selling holders may be subject to
statutory liabilities, including, without limitation, liabilities under
Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the Exchange
Act.
Because the selling holders may be deemed to be underwriters within the
meaning of the Securities Act, they may be subject to the prospectus delivery
requirements of the Securities Act. At any time a particular offer of the
securities is made, a revised prospectus or prospectus supplement, if required,
will be distributed that will disclose:
. the name of the selling holder and any participating underwriters,
broker-dealers or agents;
. the aggregate amount and type of securities being offered;
. the price at which the securities are being sold and other material terms
of the offering;
. any discounts, commissions, concessions or other items constituting
compensation from the selling holders and any discounts, commissions or
concessions allowed or reallowed or paid to dealers; and
. that the participating broker-dealers did not conduct any investigation
to verify the information in this prospectus or incorporated in this
prospectus by reference.
If required, the prospectus supplement or a post-effective amendment will be
filed with the SEC to reflect the disclosures of additional information with
respect to the distribution of the securities. In addition, if we receive
notice from a selling holder that a donee or pledgee intends to sell more than
500 shares of our common stock, a supplement to this prospectus will be filed,
if required.
51
As described above, the CODES were issued and sold in October 2001 in
transactions exempt from the registration requirements of the Securities Act to
persons reasonably believed by the initial purchasers to be "qualified
institutional buyers" as defined in Rule 144A under the Securities Act.
Pursuant to the registration rights agreement, we have agreed to indemnify each
selling holder, and each selling holder has agreed to indemnify us, against
specified liabilities arising under the Securities Act. The selling holders may
also agree to indemnify any broker-dealer or agent that participates in
transactions involving the sales of securities against some liabilities,
including liabilities that arise under the Securities Act.
The selling holders and any other person participating in the distribution
of the securities will be subject to the Exchange Act. The Exchange Act rules
include, among others, Regulation M, which may limit the timing of purchases
and sales of any of the CODES and the underlying shares of common stock by the
selling holders and any such other person. Regulation M may also restrict the
ability of any person engaged in the distribution of the CODES and the
underlying shares of common stock being distributed for a period of up to five
business days prior to the commencement of the distribution. This may affect
the marketability of the CODES and the underlying shares of common stock and
the ability of any person or entity to engage in market-making activities with
respect to the CODES and the underlying shares of common stock.
LEGAL MATTERS
The validity of the CODES offered by this prospectus and of the shares of
common stock issuable upon conversion thereof will be passed upon for us by
Quarles & Brady LLP, Milwaukee, Wisconsin.
INDEPENDENT ACCOUNTANTS
Our consolidated balance sheets as of September 30, 2001 and 2000, the
related consolidated statements of income, shareholders' equity and cash flows
for each of the years in the three-year period ended September 30, 2001,
incorporated by reference in this prospectus from our Annual Report on Form 10-
K for the fiscal year ended September 30, 2001, have been audited by KPMG LLP,
independent certified public accountants as stated in their reports appearing
thereon. Such financial statements have been incorporated by reference in
reliance upon the reports of KPMG LLP.
ADDITIONAL INFORMATION
We file annual, quarterly and special reports, proxy statements, and other
documents with the Securities and Exchange Commission under the Securities
Exchange Act of 1934. Our SEC filings are available to the public at the SEC's
website at http://www.sec.gov. You may also read and copy any document we file
at the following SEC public reference rooms:
New York Regional Office Citicorp Center,
Judiciary Plaza, 233 Broadway Suite 1400
Room 1024 New York, New York 10048 500 West
450 Fifth Street, N.W. Madison Street
Washington, D.C. 20549 Chicago, Illinois 60621
You may obtain information regarding the operation of the public reference
rooms by calling the SEC at 1-800-SEC-0330.
We have filed a registration statement on Form S-3 under the Securities Act
of 1933 with the SEC which covers the CODES and the shares of common stock
described in this prospectus. The registration statement contains information
in addition to the information in this prospectus. You may obtain that
additional information at the addresses above. This prospectus, and the
documents which this prospectus incorporates by reference, describe certain
contracts or other documents. These descriptions are only summaries, and are
not necessarily complete. If you wish further information rather than a
summary, you should review a copy of the document if we have filed it as an
exhibit to the registration statement or a document incorporated by reference
in this prospectus.
52
In addition, because our common stock is listed on the New York Stock
Exchange (ticker symbol "AOT"), you may read our reports, proxy statement, and
other documents at the offices of the New York Stock Exchange at 20 Broad
Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information in documents
that we file with it. We have elected to use a similar procedure in connection
with this prospectus, which means that we can disclose important information by
referring you to those documents that are considered part of this prospectus.
Information that we file later with the SEC will automatically update and
supersede the previously filed information. Note that we filed our documents
under the name Sybron International Corporation until our name was formally
changed to Apogent Technologies Inc. on January 31, 2001, so you may need to
look under both names to find all information that is of interest to you. We
incorporate by reference into this prospectus:
. our annual report on Form 10-K for the fiscal year ended September 30,
2001;
. our current reports on Form 8-K or 8-K/A dated as of October 3, 2001,
October 5, 2001, October 11, 2001 and November 15, 2001;
. the description of Apogent common stock in our current report on Form 8-K
dated November 15, 2001;
. the description of Apogent preferred stock purchase rights in our
registration statement on Form 8-A dated December 11, 2000; and
. any future filings we make with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 until we sell all of the
securities offered by this prospectus or terminate the offering.
You may request copies of these filings at no cost, by writing or calling us
at Apogent Technologies Inc., Attn: Investor Relations, 48 Congress Street,
Portsmouth, New Hampshire 03801, (603) 433-6131. We will also send you any
exhibits that are specifically incorporated by reference in a document that you
request.
We maintain an Internet web site at http://www.apogent.com. Our web site and
information at that site, or connected to that site, is not incorporated into
this prospectus.
53
Annex A
NOTICE OF PROPOSED TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attn: Corporate Trust Administration
Apogent Technologies Inc.
48 Congress Street
Portsmouth, New Hampshire 03801
Attn: General Counsel
Re:Apogent Technologies Inc.
2.25% Senior Convertible Contingent Debt Securities ("CODES")
Dear Sirs:
Please be advised that intends to transfer either
[Complete the applicable clause and strike out whichever clause (a) or (b) does
not apply] (a) aggregate principal amount of the above-referenced
CODES or (b) shares of Apogent common stock received upon conversion
of the above referenced CODES pursuant to an effective Registration Statement
on Form S-3 filed by Apogent.
Dated:
Very truly yours,
_____________________________________
(Name)
By: _________________________________
(Authorized Signature)
A-1
Annex B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attn: Corporate Trust Administration
Apogent Technologies Inc.
48 Congress Street
Portsmouth, New Hampshire 03801
Attn: General Counsel
Re:Apogent Technologies Inc.
2.25% Senior Convertible Contingent Debt Securities ("CODES")
Dear Sirs:
Please be advised that has transferred either
[Complete the applicable clause and strike out whichever clause (a) or (b) does
not apply] (a) aggregate principal amount of the above-referenced
CODES or (b) shares of Apogent common stock received upon conversion
of the above referenced CODES pursuant to an effective Registration Statement
on Form S-3 filed by Apogent.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied, that the above-named-
beneficial owner of the CODES or related common stock is named as a "Selling
Holder" in the related prospectus, and that the CODES transferred are the CODES
listed in such prospectus opposite such owner's name, or the shares of common
stock transferred are the shares of common stock received upon conversion of
the CODES, all in accordance with the applicable rules and regulations of the
Securities Act of 1933.
Dated:
Very truly yours,
_____________________________________
(Name)
By: _________________________________
(Authorized Signature)
B-1
- --------------------------------------------------------------------------------
2.25% Senior Convertible Contingent Debt Securities/SM/
(CODES/SM/) due 2021
----------------
PROSPECTUS
, 2002
----------------
- --------------------------------------------------------------------------------
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with the issuance and distribution of
the securities covered by this Registration Statement are as follows:
SEC registration fee (actual).......................................... $71,700
Professional fees and expenses......................................... 35,000
Printing costs......................................................... 8,000
Trustee fees and other costs........................................... 10,300
-------
Total................................................................ 125,000
=======
Apogent Technologies Inc. will bear all of the above-described expenses
related to the registration and sale of the securities covered by this
Registration Statement. The selling holders for whom Apogent Technologies Inc.
has registered the securities covered by this Registration Statement will bear
the cost of all brokerage commissions and discounts incurred in the
distribution of the securities under the Registration Statement, which
commissions and discounts are not included in the above table.
Item 15. Indemnification of Directors and Officers.
Wisconsin Law. Apogent Technologies Inc. is incorporated under the Wisconsin
Business Corporation Law (the "WBCL").
Under Section 180.0851(1) of the WBCL, Apogent is required to indemnify a
director or officer, to the extent such person is successful on the merits or
otherwise in the defense of a proceeding, for all reasonable expenses incurred
in the proceeding if such person was a party because he or she was a director
or officer of Apogent Technologies Inc. In all other cases, Apogent is required
by Section 180.0851(2) to indemnify a director or officer against liability
incurred in a proceeding to which such person was a party because he or she was
a director or officer of Apogent, unless it is determined that he or she
breached or failed to perform a duty owed to Apogent and the breach or failure
to perform constitutes:
. a willful failure to deal fairly with Apogent or its shareholders in
connection with a matter in which the director or officer has a material
conflict of interest;
. a violation of criminal law, unless the director or officer had
reasonable cause to believe his or her conduct was lawful or no
reasonable cause to believe his or her conduct was unlawful;
. a transaction from which the director or officer derived an improper
personal profit; or
. willful misconduct.
Section 180.0858(1) provides that, subject to certain limitations, the
mandatory indemnification provisions do not preclude any additional right to
indemnification or allowance of expenses that a director or officer may have
under Apogent's articles of incorporation, bylaws, any written agreement or a
resolution of the board of directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public policy of the
State of Wisconsin to require or permit indemnification, allowance of expenses
and insurance to the extent required or permitted under Sections 180.0850 to
180.0858 of the WBCL, for any liability incurred in connection with a
proceeding involving a federal or state statute, rule or regulation regulating
the offer, sale or purchase of securities.
Section 180.0828 of the WBCL provides that, with certain exceptions, a
director is not liable to a corporation, its shareholders, or any person
asserting rights on behalf of the corporation or its shareholders, for
II-1
damages, settlements, fees, fines, penalties or other monetary liabilities
arising from a breach of, or failure to perform, any duty resulting solely from
his or her status as a director, unless the person asserting liability proves
that the breach or failure to perform constitutes any of the four exceptions to
mandatory indemnification under Section 180.0851(2) referred to above.
Under Section 180.0833 of the WBCL, directors of Apogent against whom claims
are asserted with respect to the declaration of improper dividends or
distributions to shareholders or certain other improper acts which they
approved are entitled to contribution from other directors who approved such
actions and from shareholders who knowingly accepted an improper dividend or
distribution, as provided therein.
Bylaws. Article VIII of Apogent's bylaws contains provisions that generally
parallel the indemnification provisions of the WBCL and cover certain
procedural matters not dealt with in the WBCL. Furthermore, certain officers of
Apogent are also officers of subsidiaries of Apogent and, as a result, such
officers may be entitled to indemnification pursuant to provisions of such
subsidiaries' governing corporate laws, articles of incorporation and bylaws.
Apogent has also executed an indemnity agreement with each of its directors and
certain of its officers which provides certain indemnity rights to such
individuals.
Insurance. Directors and officers of Apogent are covered by directors' and
officers' liability insurance under which they are insured (subject to certain
exceptions and limitations specified in the policy) against expenses and
liabilities arising out of proceedings to which they are parties by reason of
being or having been directors or officers, including liabilities under the
Securities Act of 1933.
Item 16. Exhibits.
See Exhibit Index following the Signatures page in this registration
statement, which Exhibit Index is incorporated herein by reference.
Item 17. Undertakings.
The undersigned registrant hereby undertakes (in accordance with the
corresponding lettered undertakings in Item 512 of Regulation S-K):
(a) Rule 415 Offering. (1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
registrant with the Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
II-2
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) of Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(g)(1) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is part of this registration
statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other Items
of the applicable form.
(2) That every prospectus: (i) that is filed pursuant to paragraph (1)
immediately preceding , or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to
the registration statement and will not be used until such amendment is
effective, and that, for purposes of determining any liability under the
Securities Act of 1933, each such post effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions referred
to in Item 15 of this registration statement, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Apogent Technologies Inc.
Frank H. Jellinek, Jr.**
By: _________________________________
Frank H. Jellinek, Jr.
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Frank H. Jellinek, Jr.** President and Chief Executive Officer and
______________________________________ Director (principal executive officer of the
Frank H. Jellinek, Jr. registrant)
Jeffrey C. Leathe** Executive Vice President-Finance, Chief Financial
______________________________________ Officer and Treasurer (principal financial
Jeffrey C. Leathe officer and principal accounting officer of the
registrant)
Don H. Davis, Jr.** Director
______________________________________
Don H. Davis, Jr.
Christopher L. Doerr** Director
______________________________________
Christopher L. Doerr
Stephen R. Hardis** Director
______________________________________
Stephen R. Hardis
R. Jeffrey Harris** Director
______________________________________
R. Jeffrey Harris
II-4
Signature Title
--------- -----
William U. Parfet ** Director
______________________________________
William U. Parfet
Joe L. Roby** Director
______________________________________
Joe L. Roby
Richard W. Vieser** Director
______________________________________
Richard W. Vieser
Kenneth F. Yontz** Director
______________________________________
Kenneth F. Yontz
William H. Binnie** Director
______________________________________
William H. Binnie
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Apogent Finance Company
Jeffrey C. Leathe**
By: _________________________________
Jeffrey C. Leathe
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Jeffrey C. Leathe ** President and Treasurer (principal executive
______________________________________ officer, principal financial officer and
Jeffrey C. Leathe principal accounting officer of the registrant)
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Applied Biotech, Inc.
Craig Tuttle**
By: _________________________________
Craig Tuttle
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Craig Tuttle** President (principal executive officer of the
______________________________________ registrant)
Craig Tuttle
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Dale Hill** Controller (principal accounting officer of the
______________________________________ registrant)
Dale Hill
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Barnstead Thermolyne Corporation
Duncan Ross**
By: _________________________________
Duncan Ross
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Duncan Ross** President (principal executive officer of the
______________________________________ registrant)
Duncan Ross
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Brenda K. Hoefler** Vice President-Finance (principal accounting
______________________________________ officer of the registrant)
Brenda K. Hoefler
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson
, by power of attorney.
**By: _________________________
Michael K. Bresson
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
BioRobotics, Inc.
Gary E. Nelson**
By: _________________________________
Gary E. Nelson
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Gary E. Nelson** President (principal executive officer of the
______________________________________ registrant)
Gary E. Nelson
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
John L. Stowell** Vice President-Finance (principal accounting
______________________________________ officer of the registrant)
John L. Stowell
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Chase Scientific Glass, Inc.
Stephen Munzer**
By: _________________________________
Stephen Munzer
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Stephen Munzer** President (principal executive officer of the
______________________________________ registrant)
Stephen Munzer
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
David Bales** Vice President-Finance (principal accounting
______________________________________ officer of the registrant)
David Bales
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Consolidated Technologies, Inc.
Yuh-Geng Tsay**
By: _________________________________
Yuh-Geng Tsay
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Yuh-Geng Tsay** President (principal executive officer of the
______________________________________ registrant)
Yuh-Geng Tsay
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Linda M. Lechner** Controller (principal accounting officer of the
______________________________________ registrant)
Linda M. Lechner
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Erie Scientific Company
Mark F. Stuppy**
By: _________________________________
Mark F. Stuppy
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Mark F. Stuppy** President (principal executive officer of the
______________________________________ registrant)
Mark F. Stuppy
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Gerald Prior** Controller (principal accounting officer of the
______________________________________ registrant)
Gerald Prior
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Erie Scientific Company of Puerto
Rico
Frank H. Jellinek, Jr.**
By: _________________________________
Frank H. Jellinek, Jr.
Chairman of the Board & President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Frank H. Jellinek, Jr.** Chairman of the Board & President (principal
______________________________________ executive officer of the registrant)
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Gerald Prior** Controller (principal accounting officer of the
______________________________________ registrant)
Gerald Prior
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
*Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Erie UK Holding Company
Jeffrey C. Leathe**
By___________________________________
Jeffrey C. Leathe
President and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Jeffrey C. Leathe** President and Treasurer (principal executive
______________________________________ officer, principal financial officer and
Jeffrey C. Leathe principal accounting officer of the registrant)
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Ever Ready Thermometer Co., Inc.
Timothy B. Weiss**
By: _________________________________
Timothy B. Weiss
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Timothy B. Weiss** President (principal executive officer of the
______________________________________ registrant)
Timothy B. Weiss
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Vito LiLoia** Accounting Manager (principal accounting officer
______________________________________ of the registrant)
Vito LiLoia
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Genevac Inc.
Harry Cole**
By: _________________________________
Harry Cole
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Harry Cole** President (principal executive officer of the
______________________________________ registrant)
Harry Cole
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Debra Hall** General Manager (principal accounting officer of
______________________________________ the registrant)
Debra Hall
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
G&P Labware Holdings Inc.
Robert V. Ahlgren**
By: _________________________________
Robert V. Ahlgren
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Robert V. Ahlgren** President (principal executive officer of the registrant)
______________________________________
Robert V. Ahlgren
Jeffrey C. Leathe** Treasurer (principal financial officer of the registrant)
______________________________________
Jeffrey C. Leathe
Karen Dally** Vice President (principal accounting officer of the registrant)
______________________________________
Karen Dally
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Lab-Line Instruments, Inc.
Timothy B. Weiss**
By: _________________________________
Timothy B. Weiss
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Timothy B. Weiss** President (principal executive officer of the registrant)
______________________________________
Timothy B. Weiss
Jeffrey C. Leathe** Treasurer (principal financial officer of the registrant)
______________________________________
Jeffrey C. Leathe
Philip T. Reid** Controller (principal accounting officer of the registrant)
______________________________________
Philip T. Reid
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Lab Vision Corporation
Glenn K. Takayama**
By: _________________________________
Glen K. Takayama
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Glenn K. Takayama** President (principal executive officer of the
______________________________________ registrant)
Glenn K. Takayama
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Brian Wood** Chief Financial Officer (principal accounting
______________________________________ officer of the registrant)
Brian Wood
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Matrix Technologies Corporation
Gary E. Nelson**
By: _________________________________
Gary E. Nelson
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Gary E. Nelson** President (principal executive officer of the
______________________________________ registrant)
Gary E. Nelson
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
John L. Stowell** Chief Financial Officer (principal accounting
______________________________________ officer of the registrant)
John L. Stowell
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Microgenics Corporation
Yuh-Geng Tsay**
By: _________________________________
Yuh-Geng Tsay
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Yuh-Geng Tsay** President (principal executive officer of the
______________________________________ registrant)
Yuh-Geng Tsay
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Linda M. Lechner** Vice President Administration and Chief Financial
______________________________________ Officer (principal accounting officer of the
Linda M. Lechner registrant)
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Molecular BioProducts, Inc.
Robert Arnold**
By: _________________________________
Robert Arnold
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Robert Arnold** President (principal executive officer of the
______________________________________ registrant)
Robert Arnold
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Angela M. Egner** Controller (principal accounting officer of the
______________________________________ registrant)
Angela M. Egner
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Nalge Nunc International Corporation
Robert V. Ahlgren**
By: _________________________________
Robert V. Ahlgren
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Verner Andersen** Chief Executive Officer (principal executive
______________________________________ officer of the registrant)
Verner Andersen
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Jean C. Mucenski** Vice President--Finance (principal accounting
______________________________________ officer of the registrant)
Jean C. Mucenski
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
National Scientific Company
Craig M. Jack**
By: _________________________________
Craig M. Jack
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Craig M. Jack** President (principal executive officer of the
______________________________________ registrant)
Craig M. Jack
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Jean C. Mucenski** Vice President--Finance (principal accounting
______________________________________ officer of the registrant)
Jean C. Mucenski
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
The Naugatuck Glass Company
Harold A. Racevicius**
By: _________________________________
Harold A. Racevicius
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Harold A. Racevicius** President (principal executive officer of the
______________________________________ registrant)
Harold A. Racevicius
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Harry X. Cashin, III** Director of Finance (principal accounting officer
______________________________________ of the registrant)
Harry X. Cashin, III
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
NERL Diagnostics Corporation
Donald H. McGlory, Jr.**
By: _________________________________
Donald H. McGlory, Jr.
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Donald H. McGlory, Jr.** President (principal executive officer of the
______________________________________ registrant)
Donald H. McGlory, Jr.
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Douglas Fisher** Controller/Operations Manager (principal
______________________________________ accounting officer of the registrant)
Douglas Fisher
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Owl Separation Systems, Inc.
Stephen Norton**
By: _________________________________
Stephen Norton
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Stephen Norton** President (principal executive officer of the
______________________________________ registrant)
Stephen Norton
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Keith Blessington** Manager of Accounting (principal accounting
______________________________________ officer of the registrant)
Keith Blessington
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
>
**By: _________________________
Michael K. Bresson
II-27
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Remel Inc.
Susan Garay**
By: _________________________________
Susanne Garay
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.**
Signature Title
--------- -----
Susan Garay** President (principal executive officer of the
______________________________________ registrant)
Susan Garay
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Ronald F. Nutting** Vice President-- Finance (principal accounting
______________________________________ officer of the registrant)
Ronald F. Nutting
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
*Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-28
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Richard-Allan Scientific Company
David Sanford**
By: _________________________________
David Sanford
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
David Sanford** President (principal executive officer of the
______________________________________ registrant)
David Sanford
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Brian Wood** Vice President--Finance (principal accounting
______________________________________ officer of the registrant)
Brian Wood
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-29
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Robbins Scientific Corporation
Gary Nelson**
By: _________________________________
Gary Nelson
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Gary Nelson** President (principal executive officer of the
______________________________________ registrant)
Gary Nelson
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
John Stowell** Chief Financial Officer (principal accounting
______________________________________ officer of the registrant)
John Stowell
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Samco Scientific Corporation
Mark F. Stuppy**
By: _________________________________
Mark F. Stuppy
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Mark F. Stuppy** President (principal executive officer of the
______________________________________ registrant)
Mark F. Stuppy
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Harry Manoushagian** Controller (principal accounting officer of the
______________________________________ registrant)
Harry Manoushagian
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
Michael K. Bresson** Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-31
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Sybron Transition Corp.
Frank H. Jellinek, Jr.**
By: _________________________________
Frank H. Jellinek, Jr.
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Frank H. Jellinek, Jr.** President (principal executive officer of the
______________________________________ registrant)
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Vice President and Treasurer (principal financial
______________________________________ officer and principal accounting officer of the
Jeffrey C. Leathe registrant)
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-32
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Vacuum Process Technology, Inc.
Steve Eriksson**
By: _________________________________
Steve Eriksson
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Steve Eriksson** President (principal executive officer of the
______________________________________ registrant)
Steve Eriksson
Jeffrey C. Leathe** Treasurer (principal financial officer of the
______________________________________ registrant)
Jeffrey C. Leathe
Thomas Lawler** Controller (principal accounting officer of the
______________________________________ registrant)
Thomas Lawler
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-33
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portsmouth, State of New Hampshire,
on January 22, 2002.
Forefront Diagnostics, Inc.
Michael K. Bresson**
By: _________________________________
Michael K. Bresson
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
--------- -----
Michael K. Bresson** President (principal executive officer of the
______________________________________ registrant)
Michael K. Bresson
Jeffrey C. Leathe** Treasurer (principal financial and accounting
______________________________________ officer of the registrant)
Jeffrey C. Leathe
Frank H. Jellinek, Jr.** Director
______________________________________
Frank H. Jellinek, Jr.
Jeffrey C. Leathe** Director
______________________________________
Jeffrey C. Leathe
/s/ Michael K. Bresson Director
______________________________________
Michael K. Bresson
- --------
* Each of these signatures is affixed as of January 22, 2002.
/s/ Michael K. Bresson , by power of attorney.
**By: _________________________
Michael K. Bresson
II-34
APOGENT TECHNOLOGIES INC.
(the "Registrant") and its Guarantor Subsidiaries
(Commission File No. 1-11091)
EXHIBIT INDEX
TO
AMENDMENT NO. 1 TO
FORM S-3 REGISTRATION STATEMENT
(Commission File No. 333-75834)
Exhibit Filed
Number Description Incorporated Herein By Reference To herewith
------- ----------- ----------------------------------- --------
3.1(a) Composite Restated Exhibit 3.1 to the Registrant's
Articles of Quarterly Report on Form 10-Q
Incorporation of the for the quarter ended December 31, 2000.
Registrant, as amended
through February 5,
3.1(b) Articles of Amendment Exhibit 3.1(b) to the Registrant's
containing Certificate Form 10-K filed for the fiscal year
of Designation, ended September 30, 2000.
Preferences and Rights
of Series A Preferred
Stock
3.2 Bylaws of the Exhibit 3.2 to the Registrant's
Registrant, as amended Quarterly Report on Form 10-Q
as of January 30, for the period ended December 31, 2000.
4.1 Indenture, dated October Exhibit 99.2 to the Registrant's
10, 2001, between Current Report on Form 8-K dated
Apogent Technologies October 11, 2001.
Inc., the Subsidiary
Guarantor parties
thereto, and The Bank of
New York, as Trustee
4.2 Resale Registration Exhibit 4.10 to the Registrant's Form
Rights Agreement, dated 10-K filed for the fiscal year ended
as of October 10, 2001, September 30, 2001.
among Apogent
Technologies Inc.,
Subsidiary Guarantors
and Lehman Brothers
Inc., Credit Suisse
First Boston
Corporation; Bank of
America Securities LLC;
ABN AMRO Rothschild LLC
and UBS Warburg LLC
(collectively, as
Initial Purchasers)
4.3 Purchase Agreement, Exhibit 4.8 to the Registrant's Form
dated October 3, 2001, 10-K filed for the fiscal year ended
between Apogent September 30, 2001.
Technologies, Subsidiary
Guarantors and and
Lehman Brothers Inc.,
Credit Suisse First
Boston Corporation; Bank
of America Securities
LLC; ABN AMRO Rothschild
LLC and UBS Warburg LLC
(collectively, as
Initial Purchasers)
5 Opinion letter of Exhibit 5 to Registration Statement
Quarles & Brady LLP as No. 333-75834, filed December 21, 2001.
to the legality of the
securities being
registered
8 Opinion letter of Exhibit 8 to Registration Statement
Quarles & Brady LLP as No. 333-75834, filed December 21, 2001.
to tax matters affecting
the securities being
registered
12 Statements regarding Exhibit 12 to Registration Statement
computation of ratio of No. 333-75834, filed December 21, 2001.
earnings to fixed
charges
23 Consent of KPMG LLP X
24 Power of Attorney See Signatures Pages to Registration Statement
No. 333-75834.
25 Statement of Eligibility X
on Form T-1 of The Bank
of New York