-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FkiU++7rytVdIRNPQ4EgpWINxZOFBZAWWjOO3j89ubgGHe6IPp8N1obAkgEq+Dn3 xLsiNHK+WzWnl6scVkTRkg== 0000950130-96-002616.txt : 19960717 0000950130-96-002616.hdr.sgml : 19960717 ACCESSION NUMBER: 0000950130-96-002616 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19960716 EFFECTIVENESS DATE: 19960804 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: WATERS TECHNOLOGY CORP CENTRAL INDEX KEY: 0000930809 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY ANALYTICAL INSTRUMENTS [3826] IRS NUMBER: 133668640 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-08191 FILM NUMBER: 96595473 BUSINESS ADDRESS: STREET 1: 34 MAPLE ST CITY: MILFORD STATE: MA ZIP: 01757 BUSINESS PHONE: 5084782000 MAIL ADDRESS: STREET 1: 34 MAPLE ST CITY: MILFORD STATE: MA ZIP: 01757 FORMER COMPANY: FORMER CONFORMED NAME: WATERS CORP DATE OF NAME CHANGE: 19940930 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on July 16, 1996 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 __________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 __________ WATERS CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 13-3668640 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification Number) 34 MAPLE STREET MILFORD, MASSACHUSETTS 01757 TELEPHONE: 508-478-2000 (Address of principal executive offices, including zip code) __________ WATERS CORPORATION 1996 LONG-TERM PERFORMANCE INCENTIVE PLAN WATERS CORPORATION 1996 EMPLOYEE STOCK PURCHASE PLAN WATERS CORPORATION 1996 NON-EMPLOYEE DIRECTOR DEFERRED COMPENSATION PLAN WATERS CORPORATION 1996 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN (Full title of the plan) __________ PHILIP S. TAYMOR WATERS CORPORATION 34 MAPLE STREET MILFORD, MASSACHUSETTS 01757 TELEPHONE: 508-478-2000 (Name, address and telephone number of agent for service) COPY TO: LANCE C. BALK, ESQ. KIRKLAND & ELLIS 153 EAST 53RD STREET NEW YORK, NEW YORK 10022 TELEPHONE: 212-446-4800 CALCULATION OF REGISTRATION FEE
Title of securities to be Amount to be registered(1) Proposed maximum price Proposed maximum Amount of registered per aggregate offering price registration share(2) (2) fee Common Stock, par value 1,000,000. (3) $29.9375 $29,937,500.00 $10,323.28 $0.01 per share 250,000. (4) 7,484,375.00 2,580.84 100,000. (5) 2,993,750.00 1,032.33 50,000. (6) 1,496,875.00 516.17 Total 1,400,000. $29.9375 $41,912,500.00 $14,452.62 ==============================================================================================================================
(1) An additional indeterminable number of shares are also being registered to cover any adjustments required by anti-dilution provisions in the number of shares issuable upon the exercise of options granted under the Company's option plans. (2) Reflects the average of the high and low prices on the New York Stock Exchange on July 9, 1996 pursuant to Rule 457(h). (3) Shares reserved for issuance pursuant to the 1996 Long-Term Performance Incentive Plan. (4) Shares reserved for issuance pursuant to the 1996 Employee Stock Purchase Plan. (5) Shares reserved for issuance pursuant to the 1996 Non-Employee Director Deferred Compensation Plan. (6) Shares reserved for issuance pursuant to the 1996 Non-Employee Director Stock Option Plan. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"), and the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. Prior to the initial public offering (the "Offering") of Waters Corporation (the "Company") the name of the issuer of the Common Stock was WCD Investors Inc. Waters Corporation was a wholly owned subsidiary of Waters Holding Inc. which in turn was a wholly owned subsidiary of WCD Investors Inc. Waters Corporation and Waters Holding Inc. were the primary assets of WCD Investors Inc. At the time of the Offering, (i) Waters Holding Inc. was merged with and into WCD Investors Inc., with WCD Investors Inc. the surviving corporation, and (ii) Waters Corporation changed its name to Waters Technologies Corporation and WCD Investors Inc. changed its name to Waters Corporation. The following documents filed with the Securities and Exchange Commission are incorporated herein by reference: (a) The Registration Statement of the Registrant on Form S-1 dated April 19, 1996, as amended by Amendment No. 1 on May 10, 1996, Amendment No. 2 on May 30, 1996 (Registration No. 333-3810). (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the fiscal year covered by the registrant document referred to in (a) above. (c) The description of the Registrant's Common Stock contained in the Registrant's Report on Form 8-A (File No. 1-14010) filed October 19, 1995 pursuant to Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description. All reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Company is incorporated under the laws of the State of Delaware. Section 145 of the General Corporation Law of the State of Delaware ("Section 145") provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorney's fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred. The Company's certificate of incorporation, as amended, provides for the indemnification of directors and officers of the Company to the fullest extent permitted by Section 145. In addition, the by-laws of the Company provide that the Company shall indemnify to the full extent authorized by law any person made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director, officer, employee or agent of the Company or is or was serving, at the request of the Company, as a director, officer, employee or agent of another corporation, partnership, joint venture, trust of other enterprise. In addition, pursuant to certain Indemnification Agreements dated August 18, 1994 (the "Indemnification Agreements") between the Company and its directors and executive officers, the Company agreed to indemnify such directors and executive officers to the fullest extent permitted by the laws of the State of Delaware. Among other things, the Indemnification Agreements provide indemnification procedures, advancement of expenses during proceedings subject to indemnification and mechanisms for reviewing executive conduct in connection with a claim for indemnification. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. Reference is made to the Exhibit Index that immediately precedes the exhibits filed with this Registration Statement. ITEM 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (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; (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, II-2 represent a fundamental change in the information set forth in the 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 the undertakings set forth in paragraphs (i) and (ii) - -------- ------- above do not apply if the Registration Statement is on Form S-3 or Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, 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. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of any employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, 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 Securities 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 Securities 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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Milford, State of Massachusetts, on July 16, 1996. WATERS CORPORATION By: /s/ Philip S. Taymor ------------------------------ Name: Philip S. Taymor Title: Senior Vice President, Finance and Administration and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Philip S. Taymor his true and lawful attorney-in-fact, each with full power of substitution and revocation, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Waters Corporation), to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each such attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement and Power of Attorney have been signed by the following persons in the capacities indicated on July 16, 1996. Signature Capacity - --------------------------- --------------------------------------------- /s/ Douglas A. Berthiaume President, Chief Executive Officer and - --------------------------- Chairman of the Board of Directors Douglas A. Berthiaume /s/ Philip S. Taymor Senior Vice President, Finance and - --------------------------- Administration and Chief Financial Officer Philip S. Taymor (Principal Financial and Accounting Officer) /s/ Joshua Bekenstein Director - --------------------------- Joshua Bekenstein /s/ Charles L. Brown Director - --------------------------- Charles L. Brown /s/ Philip Caldwell Director - --------------------------- Philip Caldwell /s/ Edward Conard Director - --------------------------- Edward Conard /s/ Thomas P. Salice Director - --------------------------- Thomas P. Salice /s/ Marc Wolpow Director - --------------------------- Marc Wolpow II-4 INDEX TO EXHIBITS
Exhibit Description Sequentially Numbered Page Number 3.1 Second Amended and Restated Certificate of Incorporation of Incorporated by reference to Waters Corporation, as amended to date. Exhibit 3.1 to the Registrant's Report on Form 10-K dated March 29, 1996 3.2 Amended and Restated Bylaws of Waters Corporation, as amended Incorporated by reference to to date. Exhibit 3.2 to the Registrant's Report on Form 10-K dated March 29, 1996 4.1 Waters Corporation 1996 Long-Term Performance Incentive Plan. Incorporated by reference to Exhibit A to the Registrant's Proxy Statement dated March 29, 1996 4.2 Waters Corporation 1996 Employee Stock Purchase Plan. Incorporated by reference to Exhibit B to the Registrant's Proxy Statement dated March 29, 1996 4.3 Waters Corporation 1996 Non-Employee Director Deferred Incorporated by reference to Compensation Plan. Exhibit C to the Registrant's Proxy Statement dated March 29, 1996 4.4 Waters Corporation 1996 Non-Employee Director Stock Option Incorporated by reference to Plan. Exhibit D to the Registrant's Proxy Statement dated March 29, 1996 5.1 Opinion of Kirkland & Ellis 10.1 Credit Agreement, dated as of November 22, 1995, among Waters Incorporated by reference to Corporation, Waters Technologies Corporation, Bankers Trust Exhibit 10.1 to the Registrant's Company and other Lenders party thereto. Registration Statement on Form S-1 (File No. 333-3810) 10.2 First Amendment to Credit Agreement, dated as of March 6, 1996 Incorporated by reference to among Waters Corporation, Waters Technologies Corporation, Exhibit 10.2 to the Registrant's Bankers Trust Company and other Lenders party thereto. Registration Statement on Form S-1 (File No. 333-3810) 10.3 Amended and Restated Purchase and Sale Agreement dated as of Incorporated by reference to March 31, 1994 (as executed on June 28, 1994), as amended as of Exhibit 10.3 to the Registrant's August 5, 1994, August 11, 1994 and August 18, 1994, among Registration Statement on Waters Holding Inc., Millipore Corporation and certain of its Form S-1 (File No. 333-3810) subsidiaries. 10.4 WCD Investors Inc. Amended and Restated 1994 Stock Option Incorporated by reference to Plan, as amended (including Form of Amended and Restated Stock Exhibit 10.4 to the Registrant's Option Agreement). Registration Statement on Form S-1 (File No. 333-3810) 10.5 Waters Corporation Retirement Plan. Incorporated by reference to Exhibit 10.5 to the Registrant's Registration Statement on Form S-1 (File No. 333-3810) 10.6 Registration Rights Agreement made as of August 18, 1994, by and Incorporated by reference to among WCD Investors Inc., AEA Investors Inc., certain investment Exhibit 10.6 to the Registrant's funds controlled by Bain Capital, Inc. and other stockholders of Registration Statement on Waters Corporation. Form S-1 (File No. 333-3810) 10.7 Form of Indemnification Agreement, dated as of August 18, 1994, Incorporated by reference to between WCD Investors Inc. and its directors and executive Exhibit 10.7 to the Registrant's officers. Registration Statement on Form S-1 (File No. 333-3810) 10.8 Form of Management Subscription Agreement, dated as of August Incorporated by reference to 18, 1994 between WCD Investors Inc. and certain members of Exhibit 10.8 to the Registrant's management. Registration Statement on Form S-1 (File No. 333-3810) 10.9 Agreement and Plan of Merger among Water Corporation, Incorporated by reference to TA Merger Sub, Inc. and TA Instruments, Inc. dated as of March Exhibit 10.9 to the Registrant's 28, 1996. Registration Statement on Form S-1 (File No. 333-3810) 10.10 Offer to Purchase and Consent Solicitation Statement, dated March Incorporated by reference to 7, 1996, of Waters Technologies Corporation. Incorporated by Exhibit 10.10 to the reference to the Registrant's Report on Form 8K dated March 11, Registrant's Registration 1996. Statement on Form S-1 (File No. 333-3810) 23.1 Consent of Coopers & Lybrand L.L.P. 23.2 Consent of Coopers & Lybrand L.L.P. 23.3 Consent of Kirkland & Ellis (included in the opinion filed as Exhibit 5.1) 24.1 Powers of Attorney (included on the signature page of this Registration Statement)
EX-5.1 2 OPINION OF KIRKLAND & ELLIS EXHIBIT 5.1 ----------- July 16, 1996 Waters Corporation 34 Maple Street Milford, Pennsylvania 01757 Re: Shares of Common Stock, $.01 par value -------------------------------------- Ladies and Gentlemen: We are acting as counsel to Waters Corporation, a Delaware corporation (the "Company"), in connection with the preparation and filing with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), of a Registration Statement on Form S-8 (the "Registration Statement") pertaining to the registration of a proposed offering of up to 1,000,000, 250,000, 100,000 and 50,000 shares of the Company's Common Stock, $.01 par value per share (the "Common Stock") pursuant to the Company's 1996 Long-Term Performance Incentive Plan, 1996 Employee Stock Purchase Plan, 1996 Non-Employee Director Deferred Compensation Plan and 1996 Non-Employee Director Stock Option Plan, respectively. We have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary for the purposes of this opinion, including the following: (i) Amended and Restated Certificate of Incorporation and the Bylaws of the Company, each as amended to the date hereof; and (ii) certain resolutions adopted by the Board of Directors of the Company. In addition, we have made such other and further investigations as we have deemed necessary to enable us to express the opinions hereinafter set forth. Based upon the foregoing and having regard to legal considerations that we deem relevant, and subject to the comments and qualifications set forth below, it is our opinion that the Common Stock has been duly authorized. For purposes of this opinion, we have with your permission made the following assumptions, in each case without independent verification: (i) the authenticity of all documents submitted to us as originals, (ii) the conformity to the originals of all documents submitted to us as copies, (iii) the authenticity of the originals of all documents submitted to us as copies, (iv) the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, (v) the authority of such persons signing all documents on behalf of the parties thereto and (vi) the due authorization, execution and delivery of all documents by the parties thereto. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations promulgated thereunder. We do not find it necessary for purposes of this opinion to cover, and accordingly we do not purport to cover herein, the application of the securities or "Blue Sky" laws of the various states to the offering and sale of the Common Stock. This opinion shall be limited to the laws of the State of Delaware. This opinion is furnished to you in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose. Very truly yours, /s/ Kirkland & Ellis --------------------------------- KIRKLAND & ELLIS EX-23.1 3 CONSENT OF COOPERS & LYBRAND LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this registration statement of Waters Corporation on Form S-8 of our report dated January 23, 1996, on our audits of the consolidated financial statements of Waters Corporation and Subsidiaries as of December 31, 1994 and 1995 and for the period from August 19, 1994 to December 31, 1994 and the year ended December 31, 1995, which report is included in the registration statement of Waters Corporation on Form S-1 (File No. 333-3810). /s/ Coopers & Lybrand L.L.P. --------------------------------- Coopers & Lybrand L.L.P. Boston, Massachusetts July 16, 1996 EX-23.2 4 CONSENT OF COOPERS & LYBRAND LLP EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this registration statement of Waters Corporation on Form S-8 of our report which includes an explanatory paragraph addressing certain costs and expenses presented in the financial statements which represent allocations and management's estimates of the costs of services provided by Millipore Corporation, dated February 10, 1995, on our audits of the consolidated financial statements of the Waters Chromatography Division of Millipore Corporation (the "Predecessor") for the year ended December 31, 1993 and the period January 1, 1994 to August 18, 1994, which report is included in the registration statement of Waters Corporation on Form S-1 (File No. 333-3810). /s/ Coopers & Lybrand L.L.P. ---------------------------- Coopers & Lybrand L.L.P. Boston, Massachusetts July 16, 1996 -----END PRIVACY-ENHANCED MESSAGE-----