EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
by and among
Thermedics Inc.,
ATI Merger Corp.,
Analytical Technology, Inc.,
and,
for certain limited purposes,
Thermo Instrument Systems Inc.
Executed on November 29, 1995
PAGE
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT, dated as of the 29th day of November, 1995,
by and among Thermedics Inc., a Massachusetts corporation having
an office at 470 Wildwood Street, P. O. Box 2999, Woburn,
Massachusetts 01888-1799 ("Thermedics"), ATI Merger Corp., a
Delaware corporation and a wholly-owned subsidiary of Thermedics
("Acquisition"), and Analytical Technology, Inc., a Delaware
corporation having an office at The Schrafft Center, 529 Main
Street, Boston, Massachusetts 02129 ("ATI"). Thermo Instrument
Systems Inc. ("THI") is made a party to this Agreement for
certain limited purposes pursuant to Section 7.4(a) hereof.
WHEREAS, ATI's Unicam Technology Limited subsidiary and
Thermedics have entered into that certain Share Purchase
Agreement of even date herewith (the "Russell Agreement"),
pursuant to which Unicam Technology Limited intends to sell to
Thermedics, and Thermedics intends to purchase from Unicam
Technology Limited, the capital stock of Russell pH Limited (the
"Russell Transaction");
WHEREAS, ATI and THI, and certain of their respective
affiliates, have entered into that certain Asset and Share
Purchase Agreement of even date herewith (the "THI Agreement"),
pursuant to which ATI intends to sell to THI, and THI intends to
purchase from ATI, certain assets and the capital stock of
certain of ATI's subsidiaries (the "THI Transaction"); and
WHEREAS, the Boards of Directors of Acquisition and ATI deem
it advisable and in the best interest of such corporations and
their respective shareholders that, immediately after giving
effect to the THI Transaction, Acquisition be merged into and
with ATI on the terms and conditions set forth in this Agreement,
as a result of which ATI will become a wholly-owned subsidiary of
Thermedics;
NOW THEREFORE, for and in consideration of the mutual
covenants and agreements hereinafter set forth, and other good
and valuable consideration, the receipt and sufficiency of which
is acknowledged by each party hereto, the parties hereto agree as
follows:
ARTICLE 1
THE MERGER
Section 1.1. Agreement and Plan of Merger. Effective as of
the Effective Date (as defined in Section 2.2 below), Acquisition
shall be merged with and into ATI (hereinafter sometimes called
the "Merger") in accordance with the terms of this Agreement and
PAGE
the Certificate of Merger set forth in Exhibit A hereto (the
"Certificate of Merger"). ATI shall be the corporation surviving
the Merger (the "Surviving Corporation"), and the separate
existence of Acquisition shall cease as of the Merger. The
Certificate of Incorporation and the Bylaws of ATI, each as
amended and in effect immediately prior to the Effective Time of
the Merger (as defined in Section 2.2 below), shall thereafter
continue in full force and effect as the Certificate of
Incorporation and Bylaws of the Surviving Corporation. The
directors and officers of Acquisition immediately prior to the
Effective Date shall be, from and after the Effective Date, the
directors and officers of the Surviving Corporation, each to hold
office in accordance with applicable law and the Certificate of
Incorporation and Bylaws of ATI, each as amended. The effect of
the Merger shall be as provided by Section 259 of the General
Corporation Law of the State of Delaware (the "General
Corporation Law").
Section 1.2. Conversion of ATI's Shares and Stock Options.
At the Effective Time of the Merger, each share of ATI's capital
stock outstanding immediately prior thereto (herein referred to
as an "ATI Share" and collectively as the "ATI Shares"), and each
outstanding option or other right to purchase ATI Shares (herein
referred to as an "ATI Option" and collectively as the ATI
Options") by virtue of the Merger and without any action on the
part of the holder thereof, but subject to this Section 1.2 and
to Sections 1.3, 1.4, 1.5 and 1.6, below, shall be canceled and
converted into the right to receive, in cash, an amount equal to
such holder's pro rata share (the "Pro Rata Share") of
$79,284,183 (as adjusted pursuant to the terms of Section 1.3 and
reduced pursuant to the terms of Section 1.6, the "Purchase
Price"). The Pro Rata Share of each holder of ATI Shares and/or
ATI Options shall be equal to a fraction, the numerator of which
shall be the sum of (i) the number of ATI Shares held by such
holder plus (ii) the number of ATI Shares issuable upon the
exercise of all ATI Options held by such holder, and the
denominator of which shall be the sum of (x) the number of ATI
Shares outstanding immediately prior to the Effective Time plus
(y) the number of ATI Shares issuable upon the exercise of all
ATI Options outstanding immediately prior to the Effective Time.
For the purpose of this Agreement, the term "Per Share Amount"
shall mean an amount equal to the Purchase Price divided by the
sum of (x) and (y) in the next preceding sentence.
Section 1.3. Adjustments to Purchase Price.
(a) Within 10 business days after the Closing Date (as
defined in Section 2.1 below), Thermedics shall cause ATI to
prepare a consolidated balance sheet of ATI and its subsidiaries,
as of the close of ATI's fiscal month next preceding the Closing
Date but without giving effect to the THI Transaction or to any
other transaction specifically contemplated by this Agreement
(the "Closing Balance Sheet"), which Closing Balance Sheet shall
be subject to review by a single party (the "Shareholder
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Representative") designated collectively by all of the holders of
ATI Shares and ATI Options (collectively, the "Shareholders")
pursuant to Section 1.9 below, for and on behalf of the
Shareholders. The Purchase Price shall then be either (i)
increased by the amount by which the Net Tangible Equity of ATI
(as defined below) as calculated from the Closing Balance Sheet
exceeds a deficit of $1,989,000; or (ii) decreased by the amount
by which a deficit of $1,989,000 exceeds the Net Tangible Equity
of ATI as calculated from the Closing Balance Sheet (such amount,
as the case may be, the "Closing Price Adjustment"). The Closing
Balance Sheet shall be prepared using the same accounting
principles used in preparing ATI's balance sheet as of July 1,
1995, attached hereto as Exhibit B. To the extent practicable,
the Closing Balance Sheet shall be prepared by the same
individuals who closed ATI's books in connection with the
preparation of such balance sheet as of July 1, 1995. Thermedics
agrees that it shall not permit ATI to terminate the employment
of such persons, except for cause, until after they have prepared
the Closing Balance Sheet.
(b) For purposes of this Agreement, the term "Net
Tangible Equity of ATI" shall be determined in accordance with
generally accepted accounting principles consistently applied by
ATI and shall be defined as (i) the consolidated shareholders'
equity of ATI and its subsidiaries as set forth on the Closing
Balance Sheet, less (ii) the amount of any goodwill set forth on
the Closing Balance Sheet, and (iii) the value of any capitalized
intangible assets reflected on the Closing Balance Sheet.
(c) Thermedics shall provide the Shareholder
Representative with a copy of the Closing Balance Sheet promptly
upon the completion thereof, and shall provide the Shareholder
Representative and its accountants and advisors with access
(during Thermedics' normal business hours and upon reasonable
notice) to all data, workpapers and other information from which
the Closing Balance Sheet was prepared. If the Shareholder
Representative disagrees with the Closing Balance Sheet as
determined by Thermedics, then Thermedics and the Shareholder
Representative shall attempt to resolve any discrepancies in good
faith and on a reasonable schedule. Thermedics reserves the
right, however, at its option and at its expense, to cause the
Closing Balance Sheet to be audited in connection with the audit
of Thermedics' financial statements for the year ending December
30, 1995. The parties agree that in no event shall the Purchase
Price Adjustment be deemed to be determined unless and until the
earlier of (i) the completion of such audit of the Closing
Balance Sheet or (ii) the written waiver by Thermedics of the
requirement of such an audit.
(d) If the parties are unable to agree on the Closing
Balance Sheet or the Closing Price Adjustment by the close of
business on the 30th day after the date of the audit report with
respect to Thermedics' financial statements for the year ended
December 30, 1995, then the parties shall retain a nationally
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recognized accounting firm (which shall not be Ernst & Young LLP
or Arthur Andersen LLP) to resolve any dispute between them and
the Closing Balance Sheet and the Closing Price Adjustment
determined by such accounting firm shall be binding upon the
parties. Thermedics shall pay one-half of such accounting firm's
fees and expenses, and the other half of such fees and expenses
shall be paid by the Shareholder Representative.
Section 1.4. Dissenting Shares. Each outstanding ATI Share
held by an ATI shareholder who has demanded and perfected his
right to an appraisal of his ATI Shares in accordance with
Section 262 of the General Corporation Law and who has not
effectively withdrawn or lost his right to such appraisal
("Dissenting Shares") shall not be converted into or represent
the right to receive his Pro Rata Share of the Purchase Price
represented by such ATI Shares pursuant to Section 1.2 above, but
the holder thereof shall be entitled only to such rights as are
granted by Section 262 of the General Corporation Law.
Section 1.5. Escrow Account. For the purpose of providing
support of the representations and warranties of ATI contained
herein, to provide a fund from which any Purchase Price
Adjustment in favor of Thermedics may be paid, and to induce
Thermedics to enter into this Agreement, $5,000,000 shall be
withheld from the payment of the Purchase Price at the Closing
and shall be set aside in escrow (the "Escrow Account") pursuant
to the terms of an Indemnification and Escrow Agreement to be
entered into at the Closing by and among Thermedics, THI, ATI,
the Shareholder Representative and BayBank N.A., as escrow agent,
in substantially the form of Exhibit C hereto (the "Escrow
Agreement"). The funds placed in escrow pursuant to this Section
1.5, together with any interest or earnings thereon, shall be
considered the "Escrowed Funds." The Escrowed Funds shall be
held as a trust fund and shall not be subject to any lien,
attachment, trustee process or any other judicial process of any
creditor of any party, and shall be held and disbursed by the
Escrow Agent solely for the purposes and in accordance with the
terms of the Escrow Agreement.
Section 1.6. Disbursement of the Purchase Price and the
Closing Price Adjustment.
(a) Appointment of Paying Agent. Prior to the Closing
Date, Thermedics and ATI shall mutually select a bank or trust
company to act as paying agent (the "Paying Agent") pursuant to
an Agency Agreement (the "Agency Agreement") in form and
substance reasonably satisfactory to Thermedics and ATI, which
Agency Agreement shall provide for the payment of the Purchase
Price (as reduced pursuant to Section 1.6(b) below) upon
surrender of certificates representing outstanding ATI Shares and
agreements representing the right to exercise outstanding ATI
Options to be converted into the right to receive cash pursuant
to the Merger and for the payment of amounts received from the
Escrow Agent pursuant to the Escrow Agreement.
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(b) The Purchase Price shall be disbursed following
the Effective Time as follows: on the Closing Date, (i)
$5,000,000 shall be paid by Thermedics (at the direction and on
behalf of the Shareholders) into the Escrow Account pursuant to
Section 1.5 hereof, (ii) $350,000 shall be paid by Thermedics (at
the direction and on behalf of ATI) to Sonnenschein Nath &
Rosenthal in payment of all legal fees and expenses incurred or
to be incurred by ATI in connection with the transactions
contemplated by this Agreement and which have not been paid as of
the Closing, (iii) $1,041,146 shall be paid by Thermedics (at the
direction and on behalf of ATI) to CS First Boston Incorporated
in payment of all professional or transactional fees and expenses
incurred or to be incurred by ATI in connection with the
transactions contemplated by this Agreement and which have not
been paid as of the Closing, (iv) $500,000 shall be paid by
Thermedics (on behalf of the Shareholders to the Paying Agent for
the account of the Shareholder Representative in payment of the
fees and expenses thereof, and (v) the balance of the Purchase
Price (the "Balance") shall be paid by Thermedics as follows:
(A) an amount equal to the product of the Balance and a fraction,
the numerator of which is the number of ATI Shares outstanding
immediately prior to the Effective Time and the denominator of
which is the sum of the number of ATI Shares plus the number of
ATI Shares issuable upon the exercise of all ATI Options
outstanding immediately prior to the Effective Time (the
"Shareholders' Payment") shall be paid to the Paying Agent for
the account of the holders of ATI Shares outstanding immediately
prior to the Effective Time and (B) an amount equal to the
remainder of the Balance minus the Shareholder Payment (the
"Option Payment") shall be paid to ATI for the account of the
holders of ATI Shares and ATI Options immediately prior to the
Effective Time. Immediately following the Effective Time
Thermedics shall cause ATI to pay to the Paying Agent, from the
Option Payment, (X) for the account of the holders of ATI Shares
and ATI Options immediately prior to the Effective Time, an
amount equal to the aggregate exercise price of all ATI Options
outstanding immediately prior to the Effective Time (the
"Exercise Price") and (Y) for the account of the holders of ATI
Options immediately prior to the Effective Time, an amount equal
to the remainder of the Option Payment minus the Exercise Price
(the "Optionholders' Payment").
(c) As soon as practicable after the Effective Time,
and in accordance with the Agency Agreement, the Paying Agent
shall mail to (i) each holder of record of a certificate or
certificates which immediately prior to the Effective Time
represented outstanding ATI Shares (the "Certificates"), other
than ATI and any subsidiary of ATI, and (ii) each party to a
written agreement which immediately prior to the Effective Time
represented an ATI Option (the "Option Agreements") the
following: (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the
Certificates and the Option Agreements shall pass, only upon
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delivery of the Certificates and the Option Agreements to the
Paying Agent and shall be in such form and have such other
provisions as Thermedics may reasonably specify), (ii)
instructions for use in effecting the surrender of the
Certificates and the Option Agreements in exchange for such
holder's or person's Pro Rata Share, and (iii) a Shareholder
Representative Agency Agreement in form and substance
satisfactory to ATI (the "Shareholder Representative Agency
Agreement") pursuant to which a holder of ATI Shares shall
appoint the Shareholder Representative to act on its behalf with
respect to the Escrow Agreement and the Agency Agreement. Upon
surrender of a Certificate or an Option Agreement (or affidavit
of lost Certificate or Option Agreement, as the case may be, in
form and substance reasonably satisfactory to Thermedics and
Paying Agent, and, if Thermedics or Paying Agent shall reasonably
request, the posting of an indemnity bond in form and substance
reasonably satisfactory to Thermedics and Paying Agent) to the
Paying Agent or to such other agent or agents as may be appointed
by the Surviving Corporation, together with such letter of
transmittal, duly executed, a duly executed Stockholders
Representative Agency Agreement and such other documents as may
be required by the Paying Agent, the holder of such Certificate
or Option Agreement shall be entitled to receive in exchange
therefor (A) the holder of each Certificate shall receive an
amount equal to the product of the Per Share Amount and the
number of ATI Shares held by such holder immediately prior to the
Effective Time, (B) the holder of each Option Agreement shall
receive, for the account of ATI from the Optionholders' Payment,
an amount equal to the product of the Per Share Amount and the
number of ATI Options held by such holder immediately prior to
the Effective Time, minus the aggregate exercise price of such
ATI Options, and (C) the holder of each Certificate and the
holder of each Option Agreement shall receive, from the Exercise
Price, an amount equal to the product of the Exercise Price and a
fraction (the "Ownership Percentage"), the numerator of which is
the sum of all ATI Shares and all ATI Options held by such
holder, and the denominator of which is the sum of all ATI Shares
and all ATI Options held by all holders, in each case immediately
prior to the Effective Time and in each case less any amounts
required to be withheld under applicable federal, state, local or
foreign income tax regulations; and the Certificates and Option
Agreements so surrendered shall forthwith be canceled or
terminated, as the case may be. No interest will be paid or will
accrue on the cash payable upon the surrender of any Certificate
or Option Agreement. In the event of a transfer of ownership of
ATI Shares which is not registered in ATI's transfer records, a
check in payment of the proper amount of cash may be issued to a
transferee if the Certificate representing such ATI Shares is
presented to the Paying Agent, accompanied by all documents
required to evidence and effect such transfer and by evidence
that any applicable stock transfer taxes have been paid. Until
surrendered as contemplated by this Section 1.6(c), each
Certificate and each Option Agreement shall be deemed at any time
after the Effective Time to represent only the right to receive
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upon such surrender, but subject to the terms of Section 1.5
hereof and to the Escrow Agreement, the amount of cash specified
in Section 1.2 and any amounts received by the Paying Agent from
the Escrow Agent pursuant to the Escrow Agreement; provided,
however, that unless and until any such outstanding Certificate
is so surrendered (or an affidavit of lost or destroyed
Certificate and satisfactory indemnity bond is provided), the
holder of such outstanding Certificate shall cease to have any
rights as a Shareholder, except such rights, if any, as such
holder may have with respect to Dissenting Shares, and, except as
set forth above, shall not be entitled to receive any
consideration from the Surviving Corporation and/or Thermedics
with respect to the ATI Shares represented by such Certificate.
Any funds deposited with the Paying Agent that are payable to a
former Shareholder which has not submitted a claim for its Pro
Rata Share as described in this Section 1.6(c) within one year
after the Effective Time shall be paid to the Surviving
Corporation upon demand, and any former Shareholders who have not
theretofore complied with the instructions for exchanging their
Certificates and/or Option Agreements shall thereafter look only
to the Surviving Corporation for payment, it being acknowledged
by Thermedics and Acquisition that the receipt of any such
amounts by the Surviving Corporation shall not relieve it of its
payment obligations to such former Shareholders. After the
Effective Time, (i) except for transfers of Dissenting Shares in
accordance with Section 262 of the General Corporation Law, there
shall be no transfers on ATI's stock transfer books of the ATI
Shares which were outstanding immediately prior to the Effective
Time and (ii) no further exercises of ATI Options shall be
permitted.
(d) Payment of a Closing Price Adjustment by
Thermedics, if any, shall be made to the Paying Agent (for
distribution to the former holders of ATI Shares and ATI Options)
as follows: to each of the holders of ATI Shares and ATI Options
immediately prior to the Effective Time, after delivery of the
documents required pursuant to paragraph (c) of Section 1.6
hereof, an amount equal to the product of the Closing Price
Adjustment and such holder's Ownership Percentage. Payment of a
Closing Price Adjustment to Thermedics, if any, shall be made
from and out of the Escrowed Funds pursuant to the Escrow
Agreement, and the former holders of ATI Shares and ATI Options
shall have no obligation therefor in excess of their pro rata
shares of the Escrowed Funds.
Section 1.7. Conversion of Acquisition Shares. On the
Effective Date, each share of Acquisition's common stock
outstanding immediately prior thereto shall, by virtue of the
Merger and without any action on the part of the holder thereof,
be canceled and converted into one fully paid and nonassessable
common share of the Surviving Corporation, which share shall be
registered in the name of and beneficially owned by Thermedics.
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Section 1.8. Adoption by Shareholders. This Agreement
shall be promptly submitted to the shareholders of Acquisition
and ATI as provided by law. In the case of Acquisition,
Thermedics, as its sole shareholder, shall vote all its shares in
favor of adoption of this Agreement. In the case of ATI, this
Agreement shall be promptly submitted to the Shareholders for
their approval pursuant to the General Corporation Law. The
Board of Directors of ATI shall recommend to the Shareholders the
approval of this Agreement and the Merger.
Section 1.9. Appointment of Shareholder Representative.
At the Effective Time, and without any further action on the part
of the holders of the ATI Shares or the holders of the ATI
Options, the Shareholder Representative shall be deemed to have
been appointed as the representative and agent of the holders of
the ATI Shares and the holders of the ATI Options as contemplated
hereby and under the Escrow Agreement, which appointment may be
ratified by any or all holders of the ATI Shares and the holders
of the ATI Options pursuant to the Shareholder Representative
Agency Agreement (as hereinafter defined); provided, however,
that the failure to execute and deliver the Shareholder
Representative Agency Agreement will not alter the rights of the
Shareholder Representative hereunder and under the Escrow
Agreement.
ARTICLE 2
CLOSING
Section 2.1. Time and Place of Closing. The closing under
this Agreement (herein called the "Closing") shall take place at
the offices of Thermo Electron Corporation, 81 Wyman Street,
Waltham, Massachusetts 02254 at 10:00 a.m., local time, on the
day of the later of (i) the approval by the Shareholders of the
execution, delivery and performance by ATI of this Agreement and
(ii) the satisfaction of all other conditions to Closing as set
forth in Article 5 hereof, or at such other time or date as may
be mutually agreeable to the parties hereto (the date on which
the Closing occurs being herein called the "Closing Date"). All
transactions at the Closing shall be deemed to take place
simultaneously and no transaction shall be deemed to have been
completed and no document or certificate shall be deemed to have
been delivered until all transactions are completed and all
documents delivered.
Section 2.2. Consummation of the Merger. As soon as is
practicable after the satisfaction or waiver of the conditions
set forth in Article 5 hereof, the parties hereto will cause the
Merger to be consummated by delivering to the Secretary of State
of the State of Delaware the Certificate of Merger in such form
as may be required by, and executed and acknowledged in
accordance with, the relevant provisions of the General
Corporation Law. The Merger shall become effective upon the date
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(the "Effective Date") and at the time (the "Effective Time") of
the filing of the Certificate of Merger with such Secretary of
State, or at such later time, which shall be as soon as
reasonably practicable, specified as the Effective Date in the
Certificate of Merger.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1. Definitions. Unless and except to the extent
expressly indicated otherwise, when used in Section 3.2 of this
Agreement:
(a) The term "Subsidiary" shall mean each entity of
which fifty percent (50%) or more of the effective voting power
or equity interest is owned directly or indirectly (whether
legally or beneficially) by ATI.
(b) The term "Acquired Companies" shall mean ATI and
its current Subsidiaries (and, notwithstanding the consummation
of the Russell Transaction, Russell pH Limited), taken as a whole
or individually as the context requires.
(c) The term "knowledge," as it relates to ATI and the
Acquired Companies, shall mean actual knowledge of the following
executive officers of ATI: William J. Kennedy, Robert E. Kinney
and Chane Graziano, or of any of the foregoing, in each case
after actually conducting a reasonable and diligent
investigation.
(d) The term "basis" shall mean any past or present
fact, situation, circumstance, status, condition, activity,
practice, plan, occurrence, event, incident, action, failure to
act or transaction known to the party making the representation
or warranty that forms or should reasonably be expected to form
the basis for any specified consequence.
(e) The term "ordinary course of business" shall mean
the ordinary course of business of any Acquired Company
consistent with its past custom and practice (including with
respect to frequency and amount).
(f) The term "Code" shall mean the Internal Revenue
Code of 1986, as amended and in effect.
(g) The term "generally accepted accounting
principles" shall mean, as it applies to any Acquired Company,
the accounting principles generally recognized as appropriate in
the jurisdiction in which such Acquired Company is organized, and
applied on a basis consistent with the past practice of such
Acquired Company.
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Section 3.2. Representations and Warranties Pertaining to
ATI. ATI represents and warrants to Thermedics and Acquisition
that, except as set forth on the disclosure schedule attached
hereto as Exhibit D (specifically identifying the relevant
subsection hereof) (the "Disclosure Schedule"):
(a) Organization and Qualification. ATI is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite
corporate power and authority to own, operate and lease its
properties and to carry on its business as it is now being
conducted. ATI is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction in which
the character of the properties owned, operated or leased by it
or the nature of its activities is such that such qualification
is required by applicable law. Each such jurisdiction is set
forth on the Disclosure Schedule. Each Subsidiary is a
corporation or other form of limited liability company duly
incorporated or otherwise duly organized, validly existing and in
good standing (in such jurisdictions where such concept is
applicable) under the laws of its respective jurisdiction of
incorporation or organization as set forth on the Disclosure
Schedule. Each Subsidiary has all requisite corporate and other
power and authority to own, operate, and lease its properties and
to carry on its business as it is now being conducted. Each
Subsidiary is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction in which
the character of the properties owned, operated or leased by it
or the nature of its activities is such that such qualification
is required by applicable law. Each such jurisdiction is set
forth on the Disclosure Schedule. Copies of the Certificate of
Incorporation and Bylaws of ATI and each Subsidiary have
heretofore been delivered to Thermedics and such copies are
accurate and complete in all respects as of the date hereof.
(b) Capitalization. The authorized capital stock of
ATI consists of 1,000,000 shares of Series A Preferred Stock,
$1.00 par value per share ("Preferred Stock"), 6,500,000 shares
of Common Stock, $.01 par value per share ("Common Stock") and
3,500,000 shares of Class B Common Stock, $.01 par value per
share ("Class B Common Stock"). There is no other capital stock
of ATI authorized for issuance. As of the date of this
Agreement: (i) no shares of Preferred Stock, 1,425,887 shares of
Common Stock and 2,185,105 shares of Class B Common Stock,
respectively, are issued and outstanding, and such shares
constitute the total issued and outstanding share capital of ATI,
all of which have been duly authorized and validly issued, are
fully paid, nonassessable and free of preemptive rights, and are
held of record by the Shareholders identified in the Disclosure
Schedule; (ii) 40,283 shares of Common Stock are held in the
Treasury of ATI; and (iii) 737,322 shares of Common Stock were
reserved for issuance pursuant to ATI's 1990 Incentive Stock
Option Plan, 1994 Incentive Stock Option Plan, and 1994 Directors
Stock Option Plan (collectively, the "Option Plans"). No stock
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appreciation rights, phantom stock, performance based rights or
similar equity rights or obligations are outstanding under the
Option Plans or otherwise. The Disclosure Schedule sets forth
(i) the number of shares of Common Stock reserved for issuance or
grant and actually issued or granted under the Option Plans and
(ii) the exercise price of each option or other method of
determining the purchase price for any ATI Shares issued or
issuable pursuant thereto. Except as set forth above, there are
no other shares of capital stock or other securities of ATI
outstanding and no other outstanding options, warrants, rights to
subscribe to (including any preemptive rights), calls or
commitments of any character whatsoever to which ATI or any of
its Subsidiaries is a party or may be bound requiring the
issuance, transfer or sale of any shares of capital stock or
other securities of ATI or any of its Subsidiaries or any
securities or rights convertible into or exchangeable or
exercisable for any such shares or securities, and there are no
contracts, commitments, understandings or arrangements by which
ATI or any of its Subsidiaries is or may become bound to issue
additional shares of their capital stock or options, warrants or
rights to purchase or acquire any additional shares of their
capital stock or securities convertible into or exchangeable or
exercisable for any such shares. To ATI's knowledge, none of the
ATI Shares is subject to any voting trust, transfer restrictions
or other similar arrangements, except for restrictions on
transfer imposed by the Securities Act of 1933, as amended, and
state securities laws.
(c) Subsidiaries. ATI has no Subsidiaries except as
identified on the Disclosure Schedule. All of the issued and
outstanding capital stock of each of such Subsidiaries is owned
beneficially and of record by ATI. No Acquired Company is a
partner or joint venturer with any other person. No Acquired
Company directly or indirectly owns any equity or similar
interest in, or any interest convertible into or exchangeable or
exercisable for, any equity or similar interest in, any other
corporation, partnership, joint venture or other similar business
association or entity. No Acquired Company is subject to any
obligation, contingent or otherwise, to provide funds to or make
an investment (in the form of a loan, capital contribution or
otherwise) in any entity.
(d) Authority. Subject only to the approval of
Shareholders holding a majority in voting interest of the ATI
Shares, ATI has full corporate power and authority to execute,
deliver and perform this Agreement, to execute, deliver and file
the Certificate of Merger and to consummate the transactions
contemplated hereby and thereby. This Agreement has been duly
and validly authorized by all necessary corporate action on the
part of ATI, subject only, in respect of the consummation of the
Merger, to approval by the Shareholders holding a majority in
voting interest of the ATI Shares. The Board of Directors of ATI
has (i) determined that this Agreement and the transactions
contemplated hereby, including the Merger, are fair to and in the
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best interest of the Shareholders, (ii) approved this Agreement
and the transactions contemplated hereby, including the Merger,
and (iii) resolved to recommend approval and adoption of this
Agreement and the Merger by the Shareholders. This Agreement has
been duly and validly executed and delivered by ATI and, subject
only to Shareholder approval, constitutes the valid and binding
obligation of ATI, enforceable against it in accordance with its
terms, except to the extent that such enforcement may be subject
to applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect, and except that
the remedy of specific performance and injunctive and other
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may
be brought. Neither the execution, delivery and performance of
this Agreement, the filing of the Certificate of Merger nor the
consummation of the transactions contemplated hereby will (i)
conflict with or result in a violation, breach, termination or
acceleration of, or default under (or would result in a
violation, breach, termination, acceleration or default with the
giving of notice or passage of time, or both) any of the terms,
conditions or provisions of the Certificate of Incorporation or
Bylaws of ATI, as amended, or of any note, bond, mortgage,
indenture, license, agreement or other instrument or obligation
to which any Acquired Company is a party or by which any Acquired
Company or any of its properties or assets may be bound or
affected; (ii) result in the violation of any order, writ,
injunction, decree, statute, rule or regulation applicable to any
Acquired Company or its properties or assets; (iii) result in the
imposition of any lien, encumbrance, charge or claim upon any of
the assets of any Acquired Company; or (iv) entitle any employee
to severance or other payments by any Acquired Company or create
any other obligation to an employee, including an increase in
benefits. Except for (i) the approval by the Shareholders of the
Merger, (ii) a filing under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "Antitrust Improvements
Act"), (iii) filings under the antitrust or competition laws of
the jurisdictions identified on the Disclosure Schedule (the
"Competition Laws"), (iv) filing of the Certificate of Merger
with the Secretary of State of the State of Delaware, and (v)
similar filings in jurisdictions in which ATI is qualified as a
foreign corporation to do business, no consent or approval by, or
notification to or filing with, any court, governmental authority
or third party or waiting period imposed by law is required in
connection with the execution, delivery and performance of this
Agreement by ATI or the consummation of the transactions
contemplated hereby.
(e) Financial Statements. ATI has delivered to
Thermedics prior to the execution of this Agreement true and
complete copies of (i) the audited consolidated balance sheets of
ATI as at December 31, 1994, January 1, 1994 and January 2, 1993,
and audited consolidated statements of earnings and cash flows
for the years ended December 31, 1994, January 1, 1994 and
January 2, 1993, accompanied by the report thereon by Ernst &
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PAGE
Young LLP, and (ii) the unaudited consolidated balance sheet of
ATI as at September 30, 1995 (the "Pre-Closing Balance Sheet")
and the unaudited statements of earnings and cash flows for the
nine months ended September 30, 1995 (all of the financial
statements referred to in this Section 3.2(e), collectively, the
"Financial Statements"). The audited balance sheet as at
December 31, 1994 and the Pre-Closing Balance Sheet fairly
present the financial condition of ATI as at their respective
dates, subject in the case of the Pre-Closing Balance Sheet to
normal year-end adjustments, and the other Financial Statements
fairly present the financial condition, results of operations and
cash flows of ATI as at the dates and for the periods indicated,
in each case in accordance with generally accepted accounting
principles applied on a basis consistent with previous years.
Since the date of the Pre-Closing Balance Sheet, there has been
no material adverse change in the financial condition, assets,
liabilities, earnings, business or prospects of ATI.
(f) No Undisclosed Liabilities. To ATI's knowledge,
no Acquired Company has any liabilities or obligations of any
nature, other than those shown on the Pre-Closing Balance Sheet,
those which have arisen after the date of the Pre-Closing Balance
Sheet in the ordinary course of business which are not in the
aggregate or individually material and those which may result
directly or indirectly from the transactions contemplated by this
Agreement and by the Russell Agreement or the THI Agreement. As
used in this paragraph (f), the term "liability" includes any
indebtedness, claim, loss, damage, deficiency (including deferred
income tax), cost, expense, guaranty or responsibility, whether
absolute or contingent, accrued or unaccrued, liquidated or
unliquidated, asserted or unasserted, due or to become due, or
otherwise. The Disclosure Schedule sets forth in detail the
calculation of all amounts paid or payable by any person with
respect to the termination of the Employment Agreements dated as
of January 16, 1995 with each of Messrs. William J. Kennedy,
Robert E. Kinney and Chane Graziano (the "Employment
Agreements").
(g) Tax Matters.
(i) For purposes of this Agreement, "Tax" means
any federal, state, provincial, local or foreign income,
gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, windfall profits,
environmental (including without limitation Taxes under Code
Section 59A), customs duties, capital stock, franchise,
profits, withholding, social security (or similar),
unemployment, disability, real property, personal property,
sales, use, transfer, registration, value added, alternative
or add-on minimum, estimated, or other tax or other fiscal
charges of any kind whatsoever, including without limitation
any interest, penalty, or addition thereto, whether disputed
or not (but excluding any tax attributable to the THI
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PAGE
Transaction or to the transactions contemplated by this
Agreement).
(ii) For purposes of this Agreement, "Tax Return"
means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including
without limitation any schedule or attachment thereto, and
any amendment thereof.
(iii) Each Acquired Company has accurately
prepared and duly and timely filed all Tax Returns that it
was required to file. Except as set forth on the Disclosure
Schedule, all such Tax Returns were correct and complete in
all material respects. All Taxes owed by each such Acquired
Company as reflected on the Tax Returns have been paid when
due, other than those being contested in good faith and
where adequate reserves have been established therefor. No
Acquired Company is currently the beneficiary of any
extension of time within which to file any Tax Return. To
ATI's knowledge, no claim or inquiry with respect to any
material amount of Taxes has ever been made by an authority
in a jurisdiction where an Acquired Company did not file Tax
Returns that it is or may be subject to any Tax by that
jurisdiction for any period ending on or before the Closing
Date. There are no liens or other security interests on any
of the assets of any Acquired Company that arose in
connection with any failure (or alleged failure) to pay any
Tax.
(iv) Except as set forth in the Disclosure
Schedule, to ATI's knowledge, no Acquired Company has ever
filed a consolidated return with a company other than an
Acquired Company.
(v) ATI has delivered to Thermedics true and
complete copies of the Acquired Companies' tax returns as
identified on the Disclosure Schedule.
(vi) All Taxes of the Acquired Companies
attributable to Tax periods or portions thereof ending on or
prior to the Effective Date, including Taxes that may become
payable by any Acquired Company in future periods in respect
of any transactions or sales occurring on or prior to the
Effective Date, that have not yet been paid have, in the
aggregate, been adequately reflected as a liability on the
books of the Acquired Companies (including the Financial
Statements) in accordance with generally accepted accounting
principles consistently applied.
(vii) Without limiting the generality of the
foregoing, each Acquired Company has withheld or collected
and duly paid all Taxes required to have been withheld or
collected and paid in connection with payments to foreign
persons, sales and use Tax obligations with respect to any
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PAGE
and all states, and amounts paid or owing to any employee,
independent contractor, creditor, stockholder or other
person.
(viii) To ATI's knowledge, none of the Tax
Returns of any Acquired Company have been or are being
currently audited or examined by any governmental authority.
No deficiencies for any Tax have been asserted against any
Acquired Company.
(ix) There are no outstanding agreements or
waivers extending the statute of limitations applicable to
any Tax Return of any Acquired Company for any period.
(x) No Acquired Company has filed a consent under
Code Section 341(f) concerning collapsible corporations. No
Acquired Company has made any payments, is obligated to make
any payments, or is a party to any agreement that could
reasonably be expected to obligate it to make any payments,
that will be an "excess parachute payment" under Code
Section 280G. No Acquired Company has been a United States
real property holding corporation within the meaning of Code
Section 897(c)(2) during the applicable period specified in
Code Section 897(c)(1)(A)(ii). No Acquired Company has been
a passive foreign investment company as defined in Code
Sections 1291-1297. No Acquired Company is a party to any
Tax allocation or sharing agreement. ATI has no liability
for any Taxes of any person (other than an Acquired Company)
under Treas. Reg. Section 1.1502-6 (or any similar provision
of federal, state, provincial, local, or foreign law), as a
transferee or successor, by contract, or otherwise.
(h) Properties; Environmental, Health and Safety
Matters. Each Acquired Company has good title to, or a valid and
continuing leasehold interest in, all properties and assets, real
and personal, reflected on the Pre-Closing Balance Sheet or
acquired by such Acquired Company since the date of the
Pre-Closing Balance Sheet (except personal property leases
terminated, or personal property sold or otherwise disposed of,
in the ordinary course of business since the date of the
Pre-Closing Balance Sheet), free and clear of all mortgages,
liens, attachments, pledges, encumbrances or security interests
of any nature whatsoever, except for liens for taxes not yet due
and the rights of any lessor under any lease to which such
Acquired Company is a party. All leases pursuant to which any
Acquired Company leases real or personal property are in good
standing, and are valid and in full force and effect in
accordance with their respective terms. There are no defaults
under any such leases attributable to any Acquired Company, and,
to ATI's knowledge, no event has occurred that (whether or not
with notice, lapse of time or both) would constitute a default.
All buildings, improvements, machinery, equipment, vehicles and
items of tangible personal property used in connection with the
operations of the Acquired Companies are in good operating
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PAGE
condition and repair, are adequate for the uses to which they are
being put and, to ATI's knowledge, are not in need of maintenance
or repairs except for ordinary, routine maintenance.
The Disclosure Schedule sets forth or describes in
reasonable detail with respect to all real property currently
owned by the Acquired Companies (the "Property"), all other real
property currently leased by any Acquired Company and, to ATI's
knowledge, all other real property owned or leased by any
Acquired Company at any time since January 1, 1990:
(i) (a) landfills, surface impoundments, pits,
ponds, lagoons, underground injection wells, waste piles,
land treatment units, incinerators and any other units used
by any Acquired Company for the treatment, recycling, reuse,
storage and disposal (hereinafter "Management") of wastes or
recyclable materials and (b) all underground, in-ground or
on-ground storage tanks on any such real property;
(ii) for all units identified in clause (i)(a),
information on the time period used, type of waste or
recyclable material, method of Management, and whether there
is any evidence of releases of pollutants or contaminants
from such units onto the ground or subsurface or into
groundwater or surface waters;
(iii) for all tanks identified in clause (i)(b),
information on the time period used, material being stored,
and when and what tests, if any, have been conducted
regarding tank integrity and test results, and whether there
is any evidence of releases of material from such units onto
the ground or subsurface or into groundwater or surface
waters;
(iv) any evidence, including sample results, of
soil or groundwater contamination on or migrating from any
such real property which is not addressed by clauses (ii) or
(iii);
(v) a list of all sites to which wastes or
recyclable materials have been sent by any Acquired Company
for Management since January 1, 1990, the owner or operator
of such off-site facilities, the transporter of such wastes
or recyclable materials, type of waste or recyclable
materials, method of Management used, and time period of
use;
(vi) reports of releases (including continuous
release reports) of hazardous substances or oil occurring on
or from facilities of any Acquired Company and reported to
(A) the National Response Center, State Emergency Response
Commissions, Local Emergency Planning Committees or the
United States Environmental Protection Agency (the "EPA")
pursuant to requirements of the Comprehensive Environmental
16
PAGE
Response, Compensation and Liability Act of 1980, as amended
by the Superfund Amendments and Reauthorization Act of 1986
("CERCLA"), the Resource Conservation and Recovery Act
("RCRA"), the Clean Water Act ("CWA") or other federal
statutes; or (B) any foreign, state, provincial or local
governmental authority;
(vii) instances of material noncompliance by any
Acquired Company since January 1, 1990 with conditions of
environmental permits or licenses issued pursuant to, or
other requirements of, the Clean Air Act, CWA, RCRA, the
Toxic Substances Control Act ("TSCA"), the Safe Drinking
Water Act, CERCLA or similar foreign, state, provincial or
local statutes, laws, ordinances, rules or regulations
(including, without limitation, the following United Kingdom
statutes: the Clean Air Acts 1956 and 1968; the Control of
Pollution Act 1974; the Health and Safety at Work etc Act
1974; the Water Act 1989; and the Environmental Protection
Act 1990; and all statutory instruments, regulations and
orders made under each of the foregoing);
(viii) Hazardous Waste Manifest Discrepancy
Reports, RCRA biennial reports or similar state reports,
Discharge Monitoring Reports, air emission monitoring
reports and air emission inventories, filed by any Acquired
Company with any government agency since January 1, 1990;
(ix) reports of environmental audits conducted
since January 1, 1990 at facilities owned or leased by any
Acquired Company, whether by ATI or by consultants, or by
insurance companies or governmental agencies and made
available to ATI, and action plans and progress reports
responding to audit findings;
(x) claims, litigation and other legal
proceedings against any Acquired Company (including but not
limited to notices of violation, notices of noncompliance,
citations, orders, consent orders, consent decrees and
administrative or judicial enforcement proceedings) seeking
or alleging money damages (resulting from injury to person
or property), injunctive relief, remedial action, fines,
penalties or any other remedy by reason of: (A) violation of
or noncompliance with any law, regulation, rule or
requirement of law or regulation relating to pollution or
protection of the environment ("Environmental Laws"), or any
permit, license or registration issued thereunder; (B) the
disposal, discharge or release of solid wastes, pollutants
or hazardous substances, whether or not in compliance with
Environmental Laws; (C) the ownership, operation or use of
any landfill, surface impoundment, pit, pond, lagoon,
underground injection well, waste pile, land treatment unit,
wastewater treatment plant, air pollution control equipment,
or any other unit used for Management of waste or recyclable
material; or (D) exposure to any chemical substances,
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PAGE
noises, odors, or vibration at or emanating from any real
property which has been or is currently owned or leased by
any Acquired Company; including in each case all legal
proceedings which have been concluded (e.g., a judgment or
consent decree has been entered) but pursuant to which work
is ongoing (e.g., a decree requiring remedial activity to be
undertaken);
(xi) all environmentally related permits and
licenses and pending applications for such permits and
licenses for facilities which are currently owned or leased
by any Acquired Company. For facilities located in the
United States, this item includes notifications to
governmental agencies required by Sections 3010(a) (notice
of hazardous waste activity) and 9002 (underground storage
tanks) of RCRA and by comparable state laws, and notices and
reports required pursuant to Sections 302, 311, 312 and 313
of Title III of the Superfund Amendments and Reauthorization
Act of 1986 and comparable state laws;
(xii) all current and expired or terminated
contracts involving the off-site transportation or
Management of wastes or recyclable materials generated by
any Acquired Company since January 1, 1990;
(xiii) all reports of environmental assessments,
surveys or analyses addressing the operational safety of
facilities and/or activities (e.g., transportation) of any
Acquired Company and/or hazards and risks (including risk of
episodic releases and impact of routine, continuous
releases) associated therewith, including but not limited to
process risk surveys, operational safety surveys, air
emissions modeling, and risk assessments, and action plans
and progress reports responding to any such reports;
(xiv) a description of the manner in which
asbestos was or is used or otherwise present at any facility
located on real property which is currently owned or leased
by any Acquired Company; and
(xv) a list of all governmental inspections since
January 1, 1990 relating to the environment of facilities
located on real property which has been or is currently
owned or leased by any Acquired Company and any reports or
studies generated therewith.
Except as set forth in the Disclosure Schedule:
(i) No Acquired Company is or has been in
material violation of any law, regulation or ordinance
(including without limitation, Environmental Laws and laws,
regulations or ordinances relating to building, health code,
zoning, land use or similar matters) relating to properties
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PAGE
or facilities owned or leased by any Acquired Company since
January 1, 1990;
(ii) To ATI's knowledge, neither the Property nor
any other real property currently or previously owned or
leased by any Acquired Company (A) has ever been the subject
of environmental clean-up or remediation, or (B) contains
any Hazardous Material (as defined below) (other than
Hazardous Materials in quantities not in excess of amounts
reasonably required by the Acquired Companies in the
ordinary course of their business), nor has any Hazardous
Material been discharged or spilled thereon;
(iii) To ATI's knowledge, no Acquired Company has
ever owned or operated a petroleum or hazardous waste
landfill or any petroleum or other hazardous waste
treatment, storage or disposal facility;
(iv) To ATI's knowledge, there are no past or
present events, conditions, circumstances, activities,
practices, incidents, actions or plans of any Acquired
Company which may interfere with or prevent continued
compliance with Environmental Laws, or which may give rise
to any common law or legal liability, or otherwise form the
basis of any claim, action, suit, proceeding, hearing, or
investigation, based on or related to the disposal, storage,
handling, manufacture, processing, distribution, use,
treatment, or transport, or the emission, discharge, release
or threatened release into the environment, of any pollutant
or waste;
(v) there are no proceedings affecting the
Property or, to ATI's knowledge, any other real property
currently or previously leased by any Acquired Company, or,
to ATI's knowledge, threatened which could have an adverse
effect on the present or future use of any such property for
the purposes for which it was acquired or the purpose for
which it is used;
(vi) neither the Property nor, to ATI's
knowledge, any other real property currently or previously
leased by any Acquired Company at any time is or has been on
any federal or state "Superfund" list or on EPA's
Comprehensive Response, Compensation and Liability
Information System ("CERCLIS") list or on any analogous
state environmental agency list;
(vii) No Acquired Company has received any notice
from any governmental agency or other party seeking any
information or alleging any liability with regard to the
real property occupied or used by such Acquired Company now
or at any time or with regard to any off-site environmental
conditions; and
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PAGE
(viii) no real property occupied by any Acquired
Company is subject to a lien under any Environmental Laws.
For purposes of this Agreement, "Hazardous Material"
means any petroleum product or any flammable, explosive or
radioactive material, or any hazardous or toxic waste, substance
or material, including substances defined as "hazardous
substances", "hazardous materials", "solid waste" or "toxic
substances" under any applicable laws relating to hazardous or
toxic materials and substances, air pollution (including noise
and odors), water pollution, liquid and solid waste, pesticides,
drinking water, community and employee health, environmental land
use management, stormwater, sediment control, nuisances,
radiation, wetlands, endangered species, environmental permitting
and petroleum products, and may include, but not be limited to,
the Federal Insecticide, Fungicide, and Rodenticide Act, as
amended; the TSCA; the CWA; the National Environmental Policy
Act, as amended; the Solid Waste Disposal Act, as amended; the
CERCLA, as amended; the Clean Air Act, as amended; the Emergency
Planning and Community Right-to-Know Act, as amended; the
Occupational Safety and Health Act, as amended; Hazardous
Materials Transportation Act, as amended; and all rules and
regulations promulgated pursuant to such federal, state,
provincial and county and foreign laws and ordinances.
(i) Intellectual Property. The Disclosure Schedule
contains a list of all of the following that are owned by any
Acquired Company: (i) patents and patent applications; (ii)
registered trademarks, registered trade names and registered
service marks and applications therefor; and (iii) registered
licenses relating to any of the foregoing. The Disclosure
Schedule identifies the owner of each item listed thereon and, in
the case of registrations and applications, the application or
registration number and date. The Acquired Companies own or have
the right to use all proprietary rights used in the operation of
their business as heretofore conducted and necessary to continue
the operation of such business as heretofore conducted
(collectively, "Intellectual Property"). The Acquired Companies
have taken reasonable measures to protect the proprietary nature
of the Intellectual Property and to maintain in confidence the
trade secrets and confidential information that they own or use
in, and that are material to, their business. Except as set
forth on the Disclosure Schedule, no other person or entity has
any rights to any of the Intellectual Property. To ATI's
knowledge, no person or entity is infringing, violating or
misappropriating any of the Intellectual Property. Except as set
forth on the Disclosure Schedule, no Acquired Company has agreed,
except in the ordinary course of business in conjunction with
product sales, to indemnify any person or entity for or against
any infringement, misappropriation or other conflict with any
Intellectual Property. The Acquired Companies' use of the
Intellectual Property in their business does not infringe or
violate, or constitute a misappropriation of, any intellectual
property of any other person or entity. No Acquired Company has
20
PAGE
received any complaint, claim or notice in writing alleging any
such infringement, violation or misappropriation, which
complaint, claim or notice has not been resolved to the mutual
satisfaction of the parties involved in a manner which involves
no future obligations of any Acquired Company.
(j) Governmental Authorizations. Set forth on the
Disclosure Schedule is a complete and accurate list of all
governmental permits, licenses, franchises, concessions, zoning
variances and other approvals, authorizations and orders which
have been obtained in connection with, and are material to, the
conduct of the business now being conducted by each Acquired
Company. Such permits, licenses, franchises, concessions, zoning
variances, approvals, authorizations and orders constitute all
governmental permits, licenses, franchises, concessions, zoning
variances, approvals, authorizations and orders which are
required under all applicable local, state, provincial, federal
or foreign laws and regulations for the operation of the business
currently being conducted by ATI and its Subsidiaries and which
are material to the conduct of such business. All such permits,
licenses, franchises, concessions, zoning variances, approvals,
authorizations and orders are presently in full force and effect,
each Acquired Company is in material compliance with the
requirements thereof, no suspension or cancellation of any of
them is threatened, and the filing of the Certificate of Merger
and the consummation of the Merger will not adversely affect the
validity or effectiveness of, and will not require, for retention
thereof after such change of ownership, the consent or approval
of any party to, or any other person or governmental agency
having jurisdiction of, any such permit, license, franchise,
concession, zoning variance, approval, authorization or order.
ATI has no knowledge of any fact or circumstance which would
prevent, limit or restrict any Acquired Company from continuing
to operate its business in the present manner, and, to ATI's
knowledge, no new material requirements pertaining to the manner
of operating its specific business (not businesses in general)
have been issued or announced by any governmental authority
during the past year, nor are there any disputes pending between
any Acquired Company and any governmental authority relating to
the Acquired Companies' operations as presently being conducted.
(k) Compliance with Law. Each Acquired Company has
complied in all material respects and is in compliance in all
material respects with all applicable U.S. and foreign laws
(including without limitation the U.S. Foreign Corrupt Practices
Act and the U.S. Occupational Safety and Health Act and
regulations thereunder), rules, decrees, regulations, ordinances
and orders ("Laws and Regulations"), including those that affect
or relate to this Agreement or the transactions contemplated
hereby. Each Acquired Company has filed with the proper
authorities all material statements and reports required by all
applicable Laws and Regulations relating its business. No
Acquired Company has received notice or inquiry relating to any
actual or alleged violation of any Laws and Regulations. No
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PAGE
Acquired Company is a party to any agreement or arrangement
(whether or not intended to be legally binding) or is in the
pursuit of any course of conduct which is registrable under the
United Kingdom Restrictive Trade Practices Acts 1976 and 1977 or
prohibited by or capable of giving rise to an investigation by
the United Kingdom Director-General of Fair Trading or a
reference to the United Kingdom Monopolies and Mergers Commission
or is in material contravention or breach of any of the following
European Union or United Kingdom Laws and Regulations: The
Treaty of Rome 1957; the Fair Trading Act 1973; the Consumer
Credit Act 1974; the Health and Safety at Work etc Act 1974; the
Trade Descriptions Acts 1968 and 1972; the Restrictive Trade
Practices Act 1976 and 1977; the Competition Act 1980; the Data
Protection Act 1984 or any regulations, orders, notices or
directions made under any of the foregoing.
(l) U.S. Employee Benefit Plans. For the purposes of
this Section 3.2(l), the following definitions shall apply:
(i) Accumulated Funding Deficiency: An "accumulated
funding deficiency" as defined in ERISA Section 302(a)(2) or
the last two sentences of Section 412(a) of the Code, or, in
either case, successor provisions to such provisions adopted
by amendments to ERISA or the Code, as the case may be.
(ii) Complete Withdrawal: A "complete withdrawal"
from a Multiemployer Plan as defined in Section 4203 of
ERISA or successor provisions to such provision adopted by
amendments to ERISA.
(iii) ERISA: The Employee Retirement Income Security
Act of 1974, as amended and in effect at the time of
execution of this Agreement.
(iv) ERISA Affiliate: ERISA Affiliate shall mean any
United States member of any controlled group of
corporations, group of trades or businesses under common
control, or affiliated service group (as defined for
purposes of Section 414(b), (c) and (m), respectively, of
the Code) which includes ATI.
(v) Multiemployer Plan: A "multiemployer plan" as
defined in ERISA Section 3(37) or Section 414(f) of the
Code, or, in either case, successor provisions to such
provisions adopted by amendments to ERISA or the Code, as
the case may be.
(vi) Partial Withdrawal: A "partial withdrawal" from
a Multiemployer Plan as defined in Section 4205 of ERISA or
successor provisions to such provision adopted by amendments
to ERISA.
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PAGE
(vii) Plan Termination: A termination, whether
partial or complete, within the meaning of Title IV of
ERISA, of a Pension Plan subject to Title IV of ERISA.
(viii) PBGC: The Pension Benefit Guaranty
Corporation.
(ix) Pension Plan: A "pension plan" or "employee
pension benefit plan" as defined in Section 3(2) of ERISA or
successor provisions to such provision adopted by amendments
to ERISA that is applicable to employees of ATI and its
ERISA Affiliates employed in the U.S.
(x) Prohibited Transaction: A "prohibited
transaction" as defined in ERISA Section 406 or Section
4975(c) of the Code, or, in either case, successor
provisions to such provisions adopted by amendments to ERISA
or the Code, as the case may be.
(xi) Reportable Event: A "reportable event" as
defined in Section 4043(b) of ERISA or successor provisions
to such provision adopted by amendments to ERISA.
(xii) Welfare Plan: A "welfare plan" or an "employee
welfare benefit plan" as defined in Section 3(1) of ERISA or
successor provisions to such provision adopted by amendments
to ERISA that is applicable to employees of ATI employed in
the U.S.
Except as disclosed in the Disclosure Schedule:
Neither ATI nor its ERISA Affiliates maintains or
contributes to any Pension Plan or any Welfare Plan, nor has ATI
or any of its ERISA Affiliates ever had, an obligation to
contribute to any Multiemployer Plan. All Pension Plans and
Welfare Plans of ATI and its ERISA Affiliates have been
administered in compliance with their terms, ERISA and, where
applicable, the Code. ATI has received from the Internal Revenue
Service a favorable determination letter with respect to the
qualification of each such Pension Plan under Section 401(a) of
the Code and the exemption of any corresponding trust. A copy of
each such letter has been furnished to Thermedics. With respect
to each Pension Plan: (A) there is no fact, including, without
limitation, any Reportable Event, that exists that would
constitute grounds for termination of such Plan by the PBGC or
for the appointment by the appropriate United States District
Court of a trustee to administer such plan, in each case as
contemplated by ERISA; (B) neither ATI nor any of its ERISA
Affiliates nor any fiduciary, trustee or administrator of any
Pension Plan or Welfare Plan has engaged in any Prohibited
Transaction that could reasonably be expected to subject ATI to
any material tax or penalty imposed by ERISA or the Code; (C)
neither ATI nor any of its ERISA Affiliates has any liability to
the PBGC (other than for payment of premiums); and (D) there is
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no Accumulated Funding Deficiency with respect to any Pension
Plan maintained by ATI or any of its ERISA Affiliates, whether or
not waived.
To ATI's knowledge, (i) no Pension Plan or Welfare
Plan, ATI or any of its ERISA Affiliates, or any "party in
interest" or "disqualified person" (as such terms are defined in
Section 3 of ERISA and Section 4975 of the Code) with respect to
any Pension Plan or Welfare Plan, has taken any action including
the making of any investment, or failed to take any action, that
could reasonably be expected to subject such plan or any Acquired
Company to any material liability for any tax or for breach of
fiduciary duty with respect to or in connection with any Pension
Plan or Welfare Plan; (ii) no Pension Plan or Welfare Plan,
administrator or fiduciary of any Pension Plan or Welfare Plan,
or any Acquired Company could reasonably be expected to have any
material liability under any provision of any applicable law by
reason of any communication or failure to communicate with
respect to or in connection with any Pension Plan or Welfare
Plan, or any filing or failure to file with any governmental
authority with respect to a Pension Plan or Welfare Plan; and
(iii) no Pension Plan or Welfare Plan, administrator or fiduciary
of any Pension Plan or Welfare Plan, or ATI or any of its ERISA
Affiliates could reasonably be expected to have any material
liability to any plan participant, beneficiary or other person
under any provision of any applicable law by reason of any
payment of benefits or failure to pay benefits, or by reason of
any credit or failure to give credit for any benefits or rights
(such as, but not limited to, vesting rights) with respect to
benefits under or in connection with any Pension Plan or Welfare
Plan, other than benefit claims in the normal administration of
each Pension Plan or Welfare Plan. Neither ATI nor any ERISA
Affiliate is delinquent or in arrears on any amounts owed to, or
with respect to any contributions under, any Pension Plan or
Welfare Plan. To ATI's knowledge, no person is a participant in
or eligible for participation (without regard to age or service)
in, any Pension Plan or Welfare Plan who is not a present or
former employee of an Acquired Company or a beneficiary of such
Pension Plan or Welfare Plan. Except as may be required by the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"),
none of the Pension Plans or Welfare Plans provides for
continuing accrual of benefits or coverage for any participant or
beneficiary of a participant after such participant's termination
of employment with ATI or any ERISA Affiliate.
Except to the extent COBRA requires ATI or any ERISA
Affiliate to offer health benefits, there are no unfunded
obligations under any Pension Plan or Welfare Plan providing
benefits after termination of employment to any employee of ATI
or its ERISA Affiliates (or beneficiary thereof), including
without limitation retiree health coverage and deferred
compensation. There has been no Plan Termination that has
occurred during the five-year period ending on the date hereof.
Neither ATI nor any of its ERISA Affiliates has any liability
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incurred under Title IV of ERISA with respect to any Pension Plan
maintained by a trade or business (whether or not incorporated)
which is under common control with, or part of a controlled group
of corporations with, ATI, within the meaning of Sections 414(b)
or (c) of the Code. To ATI's knowledge, no event has occurred
and no condition exists with respect to any Pension Plan or
Welfare Plan that would subject ATI or any ERISA Affiliate to any
tax under Section 4972, 4977, 4979 or 4980B of the Code or to a
fine under ERISA Section 502(c) with respect to any such plan.
No Welfare Plan is funded with a trust or other funding vehicle,
other than insurance policies. No Welfare Plan or Pension Plan,
plan documentation or agreement, summary plan description or
other written communication distributed to employees prohibits
ATI or any ERISA Affiliate from amending or terminating any such
plan. There has occurred no Complete Withdrawal or Partial
Withdrawal with respect to any Multiemployer Plan that could
reasonably be expected to cause ATI or any of its ERISA
Affiliates to incur any liability under or as a result of ERISA
other than to the extent previously paid or fully provided for in
the Pre-Closing Balance Sheet, and all payments required to be
made to any such Plan by ATI and its ERISA Affiliates under any
applicable collective bargaining agreements have been made. As
of the date of the Pre-Closing Balance Sheet, neither ATI nor any
ERISA Affiliate had any material liability in connection with any
Pension Plan, Welfare Plan or other employee benefit plan which
was not fully provided for on the Pre-Closing Balance Sheet.
Except as set forth on the Disclosure Schedule, there are no
actions, arbitrations or claims pending or threatened with
respect to any Pension Plan, Welfare Plan or other employee
benefit plans or any fiduciary or sponsor thereof that if
resolved adversely could reasonably be expected to result in a
material liability to ATI or its ERISA Affiliates.
(m) Foreign Employee Benefit Plans. The Disclosure
Schedule lists (i) each retirement plan that is not statutorily
required (disregarding for this purpose the United Kingdom
Statutory requirement for any contracted-out schemes to provide
guaranteed minimum pensions under the United Kingdom Pension
Schemes Act 1993) that is maintained or contributed to by or on
behalf of any Acquired Company applicable to employees located
outside of the U.S. (a "Foreign Retirement Plan") and (ii) each
welfare benefit plan that is not required by statute or
applicable national industry-wide agreement maintained or
contributed to by or on behalf any Acquired Company applicable to
employees located outside of the U.S. and which, in the case of
clause (ii), obligates or may reasonably be expected to obligate
any Acquired Company to provide a value of more than $50,000
annually (a "Foreign Welfare Plan"). Each such Foreign
Retirement Plan and Foreign Welfare Plan (collectively, the
"Foreign Plans") is fully funded, has been administered in
compliance with its terms and the requirements of all applicable
Laws and Regulations (including, without limitation, Article 119
of the Treaty of Rome), and all required contributions to each
Foreign Plan have been made. The books and records of the
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PAGE
Acquired Companies accurately reflect the obligations and
liabilities of the Acquired Companies under the Foreign Plans.
ATI has heretofore delivered to Thermedics true and complete
copies of all of the written Foreign Plans and written summaries
of the oral Foreign Plans and, where applicable, related trusts
and contracts, including all amendments. There are no inquiries
or investigations by any foreign governmental authority, no
termination proceedings and no actions, suits or claims (other
than claims for benefits) pending or, to ATI's knowledge,
threatened against any Foreign Plan (or against any Acquired
Company with respect thereto) or the assets thereof. There are
no unfunded obligations under any Foreign Plan providing benefits
after termination of employment to any employee or former
employee of any Acquired Company (or to any beneficiary of any
such employee or former employee), including but not limited to
retiree health coverage and deferred compensation, but excluding
insurance conversion privileges under applicable foreign law. No
Foreign Plan, plan documentation or agreement, summary plan
description or other written communication distributed generally
to employees of any Acquired Company by its terms prohibits the
amendment or termination of any such Foreign Plan. All reports,
forms and other documents required to be filed or advisable to be
filed with any governmental authority with respect to each
Foreign Plan have been timely filed and are complete and accurate
in all material respects.
(n) Labor Matters. To ATI's knowledge, no Acquired
Company has ever experienced any strike, material grievance,
material claim of unfair labor practices or other collective
bargaining dispute. To ATI's knowledge, there is no
organizational effort presently being made or threatened by or on
behalf of any labor union with respect to the employees of any
Acquired Company. There are not in existence and, to ATI's
knowledge, there are not threatened any material (i) work
stoppages or strikes, (ii) grievance, arbitration proceedings or
proceedings before any industrial tribunal arising out of
collective bargaining agreements, national labor union agreements
or otherwise covering the employees of any Acquired Company, or
(iii) unfair labor practice complaints. No Acquired Company
recognizes (expressly or impliedly) any trade union other than as
identified on the Disclosure Schedule. No other trade union has
made any claim for recognition by any Acquired Company. No
Acquired Company has made any representations or statements to
any of its employees in any way connected with or concerning
employment with the Surviving Corporation or any of its
affiliates which representation or statement conflicts with, or
is additional to, the terms of this Agreement. There are no
requirements or arrangements (whether or not intended to be
legally binding) on the part of any Acquired Company to pay any
employee any sums on redundancy other than under any applicable
Laws and Regulations. The Disclosure Schedule contains a
complete and accurate list of all employees terminated by ATI or
by any other Acquired Company that is subject to the Worker
Adjustment and Retaining Notification Act, as amended (the "WARN
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PAGE
Act"), in the 90-day period immediately prior to the date of this
Agreement.
(o) Contracts. The Disclosure Schedule contains a
list of the following contracts, understandings, commitments and
agreements to which ATI or any of its Subsidiaries is a party
(whether or not reduced to writing):
(i) all contracts, leases, understandings or
commitments, whether in the ordinary course of business or
not: (A) involving a present or future obligation to
purchase, lease or deliver goods or services of an amount or
value in excess of $100,000 each; or (B) which limit or
restrict the ability of any Acquired Company to compete
anywhere in the world;
(ii) all bonus, incentive or deferred
compensation arrangements, all profit sharing, pension,
multiemployer pension, vacation, group insurance or employee
welfare plans or other similar plans or fringe benefits
which could result in a cost to any Acquired Company of more
than $100,000 per annum;
(iii) all collective bargaining agreements or
other contracts or commitments to or with any labor union,
employee representative or group of employees, and ATI has
made available to Thermedics all employment manuals,
booklets and the like setting forth the terms of employment
and labor policies and practices (whether or not legally
binding) that are of general application to its employees;
(iv) each employment contract, and each other
contract, agreement or commitment to or with an individual
employee, agent, representative or consultant for a
remuneration which exceeds or will exceed in accordance with
its terms $100,000 per annum or which cannot be terminated
at any time without liability to the employer, upon no more
than six months notice;
(v) any arrangement under which any Acquired
Company has created, incurred, assumed or guaranteed
indebtedness for borrowed money involving more than
$100,000;
(vi) each sales representative, distributorship
or other agreement providing for the distribution or
marketing of products which is not terminable by the
Acquired Company upon no more than six months prior notice
to the other party thereto without breach, penalty, or other
financial obligation to such other party thereto;
(vii) any agreement concluded within the past
five years relating to the acquisition or disposition of
assets, businesses or companies for a price in excess of
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PAGE
$1,000,000 (whether by sale of assets, sale of stock, merger
or otherwise); and
(viii) any other arrangement under which the
consequences of a default or termination could have a
material adverse effect upon the business, assets or
financial condition of ATI, or which gives or could give any
other party thereto the right to cause the transactions
contemplated by this Agreement to be rescinded following
consummation, or which involves more than $250,000 in the
aggregate.
ATI has delivered or made available to Thermedics a correct
and complete copy of (i) each written arrangement (as amended to
date) listed in the Disclosure Schedule. With respect to each
written arrangement so listed: (i) to ATI's knowledge, the
written arrangement is legal, valid, binding and enforceable and
in full force and effect with respect to each party thereto;
(ii) each written arrangement to which any Acquired Company is a
party is assignable by such Acquired Company without the consent
or approval of or any payment to any party (except as set forth
in the Disclosure Schedule), and the consummation of the
transactions contemplated herein will not result in a violation
or breach of or constitute a default under (or would result in a
violation, breach or default with the giving of notice or the
passage of time or both) any such written arrangement which
violation, breach or default (together with all other such
violations, breaches or defaults) would have a material adverse
effect upon the business, assets or financial condition of ATI;
and (iii) no Acquired Company nor, to ATI's knowledge, any other
party thereto is in breach or default, and no event has occurred
which, with notice and/or lapse of time, would constitute such a
breach or default or permit a termination, modification or
acceleration, under the written arrangement, which breach or
default would have a material adverse effect upon the business,
assets or financial condition of ATI. No Acquired Company is a
party to any oral contract, agreement or other arrangement which,
if reduced to written form, would be required to be listed in the
Disclosure Schedule under the terms of this subsection (o).
(p) Insurance Policies. The Disclosure Schedule sets
forth a list (including the name of the insurer, the amount of
total annual premiums, and the type and amount of coverages) of
all material policies of fire, theft, casualty, liability,
burglary, fidelity, workers compensation, business interruption,
environmental, product liability, automobile and other forms of
insurance under which any Acquired Company is a named insured or
otherwise the beneficiary of coverage. No Acquired Company has
received any notice from the insurer under any such policy
disclaiming coverage, reserving rights with respect to a
particular claim or such policy in general, or canceling or
materially amending any such policy. All premiums due and
payable for such insurance policies have been duly paid, and such
policies or extensions or renewals thereof in the amounts
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PAGE
described will be outstanding and duly in full force without
interruption through the Closing Date.
(q) Inventory. The value of the inventory as stated
on the Pre-Closing Balance Sheet reflects the lower of cost or
market for such inventory as applied in accordance with generally
accepted accounting principles. All inventory reflected on the
Pre-Closing Balance Sheet consists of a quality and quantity
usable and salable in the ordinary course of business, except for
scrap, excess or obsolete items and items that are of
below-standard quality or broken before completion of final
manufacture, all of which have been written-off or written-down
to net realizable value on the Pre-Closing Balance Sheet. All
inventory purchased since the date of the Pre-Closing Balance
Sheet consists of a quality and quantity usable and salable in
the ordinary course of business, except for scrap, excess or
obsolete items and items that are of below-standard quality or
are broken before completion of final manufacture, all of which
have been written-off or written-down to net realizable value on
ATI's books.
(r) Backlog. The firm sales orders and commitments
for the Acquired Companies' services and products that make up
the Acquired Companies' backlog as of the date of the Pre-Closing
Balance Sheet (the "Backlog") is not less than $7,500,000. All
such orders and commitments and any quotations for work which are
outstanding at that time contain terms and conditions that are
consistent with the past practice of the Acquired Companies over
the past year.
(s) No Changes. Except as expressly contemplated by
this Agreement or as set forth in the Disclosure Schedule, since
the date of the Pre-Closing Balance Sheet each Acquired Company
has conducted its business only in the ordinary course, and none
of the following has occurred:
(i) any material adverse change in the condition
(financial or other), results of operations, business,
assets, liabilities or customer, supplier and employee
relations or prospects of any Acquired Company;
(ii) any damage, destruction or loss (whether or
not covered by insurance) to property which materially and
adversely affects the condition (financial or other),
results of operations, business, assets, liabilities, or
customer, supplier and employee relations, or prospects of
any Acquired Company;
(iii) any declaration, setting aside or payment
of any dividend, or other distribution, in respect of the
capital stock of any Acquired Company or any direct or
indirect redemption, purchase or other acquisition of such;
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PAGE
(iv) any option to purchase the capital stock of
any Acquired Company granted to any person, or any
employment or deferred compensation agreement entered into
between any Acquired Company and any of its officers,
directors or consultants;
(v) any issuance or sale by any Acquired Company,
or any commitment by any Acquired Company to issue, of any
stock (other than upon the exercise of stock options), bonds
or other corporate securities, or any partial or complete
formation, acquisition, disposition or liquidation of any
Acquired Company;
(vi) any labor union trouble (including without
limitation any negotiation, or request for negotiation, with
respect to any union representation or any labor contract)
respecting any Acquired Company;
(vii) any statute, rule or regulation, or any
government policy adopted which pertains particularly to the
business of any Acquired Company (and not businesses in
general) and which may materially and adversely affect the
business or assets of ATI;
(viii) any change in accounting methods,
principles or practices by any Acquired Company materially
affecting its assets, liabilities or business, except
insofar as may have been required by a change in generally
accepted accounting principles;
(ix) any reevaluation by any Acquired Company of
any of its assets, including, without limitation, writing
down (or up) the value of inventory or writing off (or
failing to write off) notes or accounts receivable other
than in the ordinary course of business consistent with past
practice, which has resulted in, or reasonably could be
expected to result in, a material adverse effect upon the
business, assets or financial condition of ATI; or
(x) any agreement by any Acquired Company to do
any of the things described in the preceding clauses (i)
through (ix) other than as expressly contemplated herein.
(t) Liens on Assets. The assets, including any real
property in which any Acquired Company has an interest, reflected
in the Pre-Closing Balance Sheet or acquired in the ordinary
course of business since the date of the Pre-Closing Balance
Sheet (the "Assets") (except those Assets sold or disposed of in
the ordinary course of business for full and fair consideration),
are free and clear of all mortgages, security interests, pledges,
liens and encumbrances (collectively, "Encumbrances") other than
(i) as set forth on the Disclosure Schedule, (ii) as reflected in
the Pre-Closing Balance Sheet, (iii) Encumbrances on Assets
which, in the aggregate, are not material to ATI, and (iv) liens
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for state and local property taxes not in arrears and liens
arising by operation of law.
(u) Litigation or Proceedings. No Acquired Company is
engaged in, or a party to, or, to ATI's knowledge, threatened
with, any claim or legal action or other proceeding before any
court, any arbitrator of any kind or any administrative agency,
or any governmental investigation, or any suspension or debarment
proceeding, nor, to ATI's knowledge, does any basis for any claim
or legal action or other proceeding or governmental investigation
or any suspension or debarment proceeding exist. There are no
orders, rulings, decrees, judgments or stipulations to which any
Acquired Company is a party by or with any court, arbitrator or
administrative agency affecting ATI, or its business or
properties.
(v) Books and Records. The books, records, accounts,
ledgers and files of ATI and of each Subsidiary are accurate and
complete in all material respects and have been maintained in
accordance with good business and bookkeeping practices in all
material respects. The minute books and other similar records of
ATI and of each Subsidiary of actions taken at any meetings of
its stockholders, Board of Directors, Managing Board,
Supervisory Board or any committee thereof and of all written
consents executed in lieu of the holding of any such meeting are
true and complete in all material respects. The stock
certificate books, stock ledgers and/or share registers of ATI
and of each Subsidiary are complete and correct in all material
respects.
(w) Government Contracts. To ATI's knowledge, no
Acquired Company has ever been suspended or debarred from bidding
on contracts or subcontracts with any governmental authority; no
such suspension or debarment has been initiated or, to ATI's
knowledge, threatened; and the consummation of the transactions
contemplated by this Agreement will not result in any such
suspension or debarment). To ATI's knowledge, no Acquired
Company has ever been audited or investigated, and it has not
been threatened with any investigation, by the U.S. Government
Accounting Office, the U.S. Department of Defense or any of its
agencies, the Defense Contract Audit Agency, the U.S. Department
of Justice, the Inspector General of any agency of the U.S.
government, any similar agencies or instrumentalities of any
foreign government, or any prime contractor with a governmental
authority nor, to ATI's knowledge, has any such audit or
investigation been threatened. There is no valid basis for (a)
the suspension or debarment of any Acquired Company from bidding
on contracts or subcontracts with any governmental authority or
(b) any claim pursuant to any audit by any governmental authority
in connection with any contracts or subcontracts relating to the
provision of products or services to or for the benefit of a
governmental authority. No Acquired Company has any agreements,
contracts or commitments which require it to obtain or maintain a
security clearance with any governmental authority.
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PAGE
(x) Recalls. To ATI's knowledge, there is no basis
for the recall, withdrawal or suspension of any approval by any
governmental authority with respect to any product or service
sold by any Acquired Company. None of the products or services
of any Acquired Company is subject to any recall proceedings and
no such proceedings have been threatened in writing. To ATI's
knowledge, no product or service of any Acquired Company has ever
been recalled.
(y) Antitrust Filings. ATI has complied, or will
comply before the Effective Date, with all applicable
requirements under the Antitrust Improvements Act and the
Competition Laws relating to filings with and furnishing
information to the Federal Trade Commission, the United States
Department of Justice and any other relevant governmental
authority in connection with the transactions contemplated
hereby.
(z) Brokers and Finders. Except for CS First Boston
Incorporated, ATI has not employed any broker, agent or finder or
incurred any liability on behalf of ATI for any brokerage fees,
agents' commissions or finders' fees in connection with the
transactions contemplated hereby. ATI has delivered to
Thermedics a true and correct copy of its agreement with CS First
Boston Incorporated with respect to the transactions contemplated
by this Agreement.
(aa) Product Warranties. Copies of the standard terms
and conditions of sale with respect to each product line of each
Acquired Company have been provided by ATI to Thermedics. No
Acquired Company has any active warranties in effect in
connection with the sale of any such products the terms of which
differ in any material respect from such standard terms and
conditions. The reserve established on the Pre-Closing Balance
Sheet for the satisfaction of claims which may be made under
product warranties in effect as of the Closing Date are adequate
in amount to satisfy all product warranty claims which may be
made with respect to any products sold by any Acquired Company
prior to the Closing Date.
(bb) Statements True and Correct; Further
Representations and Warranties. To ATI's knowledge, this
Agreement (including the Exhibits and any documents delivered
pursuant hereto) does not contain any untrue statement of a
material fact or omit any material fact required to be stated
herein or therein or necessary to make the statements contained
herein or therein, in the light of the circumstances under which
they were made, not misleading.
Section 3.3. Representations and Warranties of Thermedics.
Thermedics and Acquisition represent and warrant to ATI that:
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(a) Organization and Qualification. Thermedics is a
corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Massachusetts, and has all
requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as it is now being
conducted. Acquisition is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, and has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its
business as it is now being conducted.
(b) Authority. The execution and delivery hereof,
and the consummation of the transactions contemplated hereby,
have been, or prior to the Effective Date will be, duly and
validly authorized by all necessary corporate action on the part
of Thermedics and Acquisition, and, subject to such
authorization, this Agreement constitutes the valid and legally
binding obligation of Thermedics and Acquisition enforceable in
accordance with its terms, except to the extent that such
enforcement may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect, and except that the remedy of specific performance and
injunctive and other equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought. Neither the execution and
delivery hereof nor the consummation of the transactions
contemplated hereby will (i) conflict with or result in a
violation, breach or termination of or default under (or would
result in a violation, breach, termination or default with the
giving of notice or passage of time or both) any of the terms,
conditions or provisions of the respective Certificate of
Incorporation or Bylaws of Thermedics or Acquisition, as amended,
or of any note, bond, mortgage, indenture, license, agreement or
other instrument or obligation to which Thermedics or Acquisition
is a party, or by which Thermedics or Acquisition or any of their
properties or assets may be bound or affected, (ii) result in the
violation of any order, writ, injunction, decree, statute, rule
or regulation applicable to Thermedics or Acquisition, or their
properties or assets or (iii) result in the imposition of any
lien, encumbrance, charge or claim upon any of the assets of
Thermedics or Acquisition. Except for (i) a filing under the
Antitrust Improvements Act, (ii) filings under the Competition
Laws, and (iii) filing of the Certificate of Merger with the
Secretary of State of the State of Delaware, no consent or
approval by, or notification to or filing with, any court,
governmental authority or third party or waiting period imposed
by law is required in connection with the execution, delivery and
performance of this Agreement by Thermedics or Acquisition or the
consummation of the transactions contemplated hereby.
(c) Antitrust Filings. Thermedics has complied, or
will comply before the Effective Date, with all applicable
requirements under the Antitrust Improvements Act and the
Competition Laws relating to filings with and furnishing
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PAGE
information to the Federal Trade Commission, the United States
Department of Justice and any other relevant governmental
authority in connection with the transactions contemplated
hereby.
Section 3.4. Representations and Warranties Separate. In
the event of any inconsistency or overlap among the
representations and warranties made herein, the representation
and warranty most restrictive to the party making the
representations and warranties shall govern and control.
ARTICLE 4
COVENANTS
Section 4.1. Acts of ATI. ATI agrees that, from the date
hereof to the Effective Date, except (i) to the extent that
Thermedics shall otherwise give its written consent or (ii) as
necessary to consummate the transactions contemplated by this
Agreement and the Russell Agreement or the THI Agreement:
(a) Business in Ordinary Course. Each Acquired
Company will operate its business only in the ordinary course
consistent with past practice and, to the extent of and
consistent with such operation, will use its best efforts to
preserve intact its present business organization and to preserve
its relationships with employees and persons having business
dealings with it.
(b) Maintain Properties. Each Acquired Company will
maintain all of its properties in customary repair, order and
condition, reasonable wear and use and damage by unavoidable
casualty excepted, and take all steps reasonably necessary to
maintain its Intellectual Property.
(c) Maintain Management. No Acquired Company will
make any changes in the persons serving as management of such
Acquired Company other than to replace members of management who
may resign or who may be terminated by such Acquired Company
prior to the Closing. In no event will any Acquired Company
increase the number of persons serving as management of such
Acquired Company.
(d) Compensation. No Acquired Company will (i) grant
any increase in compensation or bonus to any member of management
or (ii) enter into or amend or alter any bonus, incentive
compensation, deferred compensation, profit sharing, stock
option, retirement, severance, indemnification, pension,
insurance, death benefit or other fringe benefit plan, agreement
or arrangement, or any employment or consulting agreement, except
as may be required to comport with changes in law or in order to
obtain from the Internal Revenue Service a favorable
determination letter on the qualified status of any Pension or
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PAGE
Welfare Plan. Copies of any such amended or altered plans or
agreements shall be delivered by ATI to Thermedics on a timely
basis.
(e) No Related Party Transactions. No Acquired
Company will enter into any transaction or contract with any of
its shareholders, officers, management, directors or employees or
their family members, including the lending of any monies.
(f) Indebtedness. No Acquired Company will create,
incur, assume, guarantee, or otherwise become liable with respect
to any indebtedness other than in the ordinary course of
business.
(g) Maintain Books. Each Acquired Company will
maintain its books, accounts and records in its usual, regular
and ordinary manner.
(h) No Amendments. Neither ATI nor any of its
Subsidiaries will amend its Certificate of Incorporation or
Bylaws, and each such entity will maintain its corporate
existence and powers and its qualifications as a foreign
corporation in each jurisdiction where it is so qualified.
(i) Taxes. Each Acquired Company will file all tax
returns and pay all taxes as they become due. No Acquired
Company will make any tax election or, except in the ordinary
course of business consistent with past practice, settle or
compromise any federal, state, provincial, local or foreign tax
liability.
(j) No Disposition or Encumbrances. Each Acquired
Company will refrain from selling, pledging, disposing of or
encumbering any of its properties and assets (including, without
limitation, any indebtedness owed to them or any claims held by
them) other than in the ordinary course of business.
(k) Insurance. Each Acquired Company will maintain
insurance upon its properties and insurance in respect of the
kinds of risks currently insured against, in accordance with its
current practice.
(l) No Mergers. No Acquired Company will merge or
consolidate with any other corporation, or acquire any stock, or,
except in the ordinary course of business, any business, property
or assets of any other person, firm, association, corporation or
other business organization, nor will any Acquired Company enter
in to any agreement to do any of the foregoing.
(m) No Securities Issuance. Other than pursuant to
the exercise of ATI Options granted prior to the date hereof, no
Acquired Company will issue any shares of capital stock, or enter
into any commitment or agreement, or grant any option, warrant or
right, calling for the issuance of any shares of stock, and no
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Acquired Company will create or issue any securities convertible
into any such shares or convertible into securities in turn so
convertible, or enter into any commitment or agreement, or grant
any option, warrant or right, calling for the issuance of any
such convertible securities.
(n) Dividends; Repurchases. No Acquired Company will
(i) declare any dividends on or in respect of shares of capital
stock (other than a dividend declared by a Subsidiary and payable
only to another Acquired Company); (ii) redeem, repurchase or
otherwise acquire any shares of its stock or (iii) split, combine
or reclassify any shares of its stock.
(o) Contracts. Except in the ordinary course of
business consistent with its past practice, no Acquired Company
will enter into, assume or cancel any material contract,
agreement, obligation, lease, license or commitment, and it will
not do any act or omit to do any act which would cause a material
breach of or default under any contract, commitment or obligation
of any Acquired Company.
(p) Advice of Change. ATI will promptly advise
Thermedics in writing of any material adverse change in the
condition (financial or otherwise), results of operations,
assets, liabilities, earnings, business or prospects of ATI.
(q) Due Compliance. Each Acquired Company will duly
comply in all material respects with all laws, rules and
regulations applicable to it and to the conduct of its business.
(r) No Waivers of Rights. No Acquired Company will
amend, terminate or waive any material right.
(s) Capital Commitments. No Acquired Company will
make or commit to make any single capital expenditure, capital
addition or capital improvement, or series of related capital
expenditures, including any capital lease, involving an amount in
excess of $100,000.
(t) No Breaches. No Acquired Company will take any
action that would constitute or result in a breach of any
representation or warranty herein, either as of the date made or
on the Effective Date.
(u) Confidential Information. No Acquired Company
shall, except as required by law or by agreements existing on the
date hereof, disclose to any third person, and shall preserve and
maintain and prevent the disclosure or publication of, any
proprietary information or trade secrets belonging to any
Acquired Company.
(v) Objections to the Merger. ATI will promptly
advise Thermedics of any written objection to the Merger from a
Shareholder.
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Section 4.2. Satisfaction of Conditions Precedent. The
parties hereby agree, subject to the terms and conditions
provided in this Agreement, to use their reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary, appropriate or desirable under
applicable laws and regulations to consummate the transactions
contemplated by this Agreement, including the satisfaction of the
conditions precedent contained in Article 5 hereof. Each party
will use their respective reasonable efforts to obtain consents
of all third-parties and governmental authorities necessary,
appropriate or desirable for the consummation of the transactions
contemplated by this Agreement.
Section 4.3. Shareholders' Approval. ATI shall take all
action necessary in accordance with applicable law to convene a
Shareholder meeting at the earliest possible time after the date
hereof for the purpose of approving and adopting this Agreement
(including the transactions contemplated hereby). Subject only
to the exercise of its fiduciary duty upon advice of counsel,
ATI's Board of Directors shall recommend to the Shareholders the
adoption of this Agreement and the approval of the Merger. ATI
shall use all reasonable efforts to obtain all votes and
approvals of the Shareholders necessary for the approval and
adoption of this Agreement and the transactions contemplated
hereby under the General Corporation Law and its Certificate of
Incorporation and Bylaws.
Section 4.4. Certain Employee Benefits Matters.
(a) Thermedics expressly reserves the right, at no
cost to the Shareholders and subject to the terms of any Pension
Plan, Welfare Plan or other benefit plan or program of any
Acquired Company, to modify or terminate, or to cause to be
modified or terminated, any such Pension Plan, Welfare Plan or
other benefit plan or program at any time or from time to time
after the Closing.
(b) Except as may be otherwise required by ERISA,
Thermedics will give employees of the Acquired Companies credit
for service with such Acquired Companies with respect to any of
Thermedics' benefit plans which have vesting or length of service
requirements.
(c) All otherwise eligible employees of the Acquired
Companies will be entitled to participate in any employee stock
purchase plan adopted from time to time by Thermedics, in
accordance with the terms thereof.
(d) The parties hereto do not intend to create any
third-party beneficiary rights respecting any employee as a
result of the provisions herein and specifically hereby deny any
such intention.
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Section 4.5. Expenses. Each party will bear entirely the
respective out-of-pocket expenses that it incurs in connection
with the transactions contemplated hereby including legal and
accounting fees, provided that, as contemplated by Section 1.6(a)
hereof, all fees and expenses incurred by ATI to Sonnenschein
Nath & Rosenthal and to CS First Boston Incorporated or its
affiliates in connection with the consummation of the
transactions contemplated hereby shall be deducted from, and paid
out of, the Purchase Price and shall not be borne by ATI.
Notwithstanding the foregoing, this Section 4.5 shall not be
construed as relieving any party from any liability which it may
have for any breach of any representation or warranty made by it
herein or any failure to perform any obligation or comply with
any covenant imposed on it herein.
Section 4.6. WARN Act. During the period commencing on the
Closing Date and ending ninety days after the Closing Date,
Thermedics shall not permit ATI or any other Acquired Company
which is subject to the WARN Act to take any action that
independently or in connection with any action of ATI or any such
Acquired Company prior to the Closing Date could be construed as
a "plant closing" or "mass layoff" within the meaning of the WARN
Act or the regulations enacted thereunder. If Thermedics permits
ATI or any such other Acquired Company to take any such action
during such 90-day period, Thermedics shall be solely responsible
for providing any notice required by the WARN Act and for making
payments, if any, which may be required under the WARN Act and
for any other liabilities related to its failure to provide
appropriate notice.
Section 4.7. Indemnification of the Shareholders by
Thermedics.
(a) The Shareholders upon demand shall be indemnified
by Thermedics for the full amount of all Damages (as defined
below) suffered any of them as a direct or indirect result of:
(i) the inaccuracy of any representation or
warranty made by Thermedics or Acquisition in or pursuant to
this Agreement (including without limitation Section 3.3);
and
(ii) any failure by Thermedics or Acquisition to
perform any obligation or comply with any covenant or
agreement specified herein (including without limitation the
covenants set forth in this Article IV) or in any other
document executed at the Closing.
(b) For the purpose of this Section 4.7, the term
"Damages" shall be determined and computed by reference to the
effect of the compensable event on the party or parties entitled
thereto, and shall be deemed to include all out-of-pocket losses,
liabilities, expenses or costs incurred by such party or parties,
including reasonable attorney's fees.
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(c) The right of the Shareholders to be indemnified
pursuant to this Section 4.7 (i) shall not apply until the sum of
the Damages suffered by the Shareholders on a cumulative basis
equals or exceeds $750,000 (the "Threshold"), at which point
Thermedics shall become liable for all Damages in excess of
$187,500 (and not just amounts in excess of the Threshold), and
(ii) shall apply only to claims that are asserted by the
Shareholders before the 343rd consecutive day after the Closing
Date (the "Escrow Termination Date"). Individual claims
involving Damages of less than $10,000 shall not be indemnified
and shall not be applied in determining whether the aggregate
Damages exceed the Threshold; provided, however, that a series of
related claims or claims based on similar facts and circumstances
shall for purposes of the preceding clause be deemed to be a
single claim and the Damages claimed with respect to each of such
claims shall be aggregated in determining whether they exceed
$10,000. Thermedics' aggregate liability for claims that are
asserted by the Shareholders before the Escrow Termination Date
shall in no event exceed $5,000,000. Thermedics' liability for
claims that are asserted by the Shareholders on or after April 1,
1996 but before the Escrow Termination Date shall in no event
exceed the difference between (i) $3,000,000 less (ii) the
aggregate dollar value of any claims asserted by the Shareholders
hereunder prior to April 1, 1996. Notwithstanding the foregoing,
any liability of Thermedics hereunder to the Shareholders shall
be reduced by any amounts to which the Shareholders may be
entitled under the indemnification provisions of the THI
Agreement. Notwithstanding any provision herein to the contrary,
the limitations set forth in this Section 4.7(c) shall not apply
to claims by Shareholders in which it is determined that
Thermedics has failed to pay the Shareholders all or any portion
of the Purchase Price in accordance with the terms of this
Agreement.
(d) The Shareholders shall give Thermedics prompt
notice of any claim, action or proceeding by a third party which
is reasonably likely to result in a claim for indemnification
under this Section 4.7. Thermedics shall have the right, at its
expense, to defend, contest, protest, settle and otherwise
control the resolution of any such claim, action or proceeding.
Thermedics shall keep the Shareholders apprised of developments
with respect to any such claim, action or proceeding, and the
Shareholders shall have the right to consult with Thermedics, and
to participate therein, subject to Thermedics' right of control
thereof, at their expense and with counsel selected by them. If
Thermedics shall notify the Shareholders that it has elected to
assume any such defense, contest or protest, Thermedics shall not
be liable to the Shareholders hereunder for any legal or other
expense subsequently incurred by them pursuant to the exercise of
their rights set forth in the preceding sentence.
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ARTICLE 5
CONDITIONS TO OBLIGATIONS
Section 5.1. Conditions to Obligations of Thermedics and
Acquisition. The obligations of Thermedics and Acquisition to
consummate the transactions contemplated hereby are subject to
the satisfaction, on or before the Closing, of the following
conditions (unless waived in writing by Thermedics and
Acquisition in the manner provided in Section 6.2 hereof):
(a) Representations, Warranties and Performance of
ATI. The representations and warranties set forth in Section 3.2
hereof shall be accurate on and as of the date hereof, and on and
as of the Closing Date as though made on and as of the Closing
Date (except to the extent necessary to reflect the consummation
of the transactions contemplated by the Russell Agreement or by
the THI Agreement), and ATI shall have performed all obligations
and complied with all covenants required to be performed or to be
complied with by it under this Agreement prior to the Closing.
ATI shall be permitted to deliver a revised Disclosure Schedule
to Thermedics at any time prior to the Closing, provided,
however, that Thermedics shall be afforded not less than five
business days prior to the Closing to review any such revised
Disclosure Schedule and provided, further, that Thermedics shall
be entitled to terminate this Agreement and its obligations
hereunder pursuant to Section 6.3 hereof in the event that any
such additional or revised disclosure has or could have, in the
sole judgment of Thermedics, an adverse effect on the financial
condition, assets, liabilities, earnings, business or prospects
of ATI.
(b) Authorization. All action necessary to authorize
the execution, delivery and performance hereof by ATI and the
consummation of the transactions contemplated hereby, including
the approval by the Shareholders of the execution, delivery and
performance of this Agreement and the Merger in accordance with
the General Corporation Law shall have been duly and validly
taken by ATI. ATI shall have furnished Thermedics with a copy of
all resolutions adopted by its Board of Directors and
Shareholders in connection with such actions, certified by the
Secretary or an Assistant Secretary of ATI, together with copies
of such other instruments and documents as Thermedics shall have
reasonably requested.
(c) Escrow Agreement. ATI shall have executed and
delivered the Escrow Agreement.
(d) Russell and THI Transactions. Unicam Technology
Limited and Thermedics shall have executed the Russell Agreement,
ATI and THI shall have executed THI Agreement, and all conditions
to precedent to the consummation of the transactions contemplated
by such agreements shall have been satisfied or waived.
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PAGE
(e) Consents. Any governmental authority having
jurisdiction over any Acquired Company, Thermedics or Acquisition
or any other person in any contractual or other relationship with
any Acquired Company, to the extent that its consent or approval
is required by applicable law or regulation or any applicable
contract or other instrument for the performance of this
Agreement or the consummation of the transactions contemplated
hereby or for the continuation of any existing contractual
relationship with any Acquired Company, shall have granted any
necessary consent or approval.
(f) Termination of the Employment Agreements. ATI
shall have terminated the Employment Agreements and ATI shall
have no obligations or liabilities, contingent or otherwise, to
any of the parties to such Employment Agreements, or to any other
person or entity, under, on account of, or with respect either
such Employment Agreements or the terminations thereof.
(g) Dissolution of Certain Subsidiaries. ATI shall
have commenced the liquidation and dissolution of Mattson
Instruments, PTY Ltd. and Unicam AG; and ATI shall have delivered
to Thermedics evidence of the commencement of such liquidations
and dissolutions as shall be reasonably satisfactory to
Thermedics, together with such evidence of the completed
liquidations and dissolutions of Cryolect Scientific, Orion
Research AG, and Mattson Instruments GmbH.
(h) Backlog. The Acquired Companies' Backlog as of
the Closing Date shall be not less than $7,500,000.
(i) Resignations. Thermedics shall have received the
resignations of each of the directors and officers of ATI and its
Subsidiaries whose resignation has been requested by Thermedics
prior to the Closing Date.
(j) Severance Agreements. Each of Messrs. William J.
Kennedy, Chane Graziano and Robert Kinney shall have executed and
delivered to ATI Severance Agreements in the form of Exhibit E
hereto.
(k) Cambridge, England Property. [Reserved]
(l) Permits and Approvals. Any and all consents,
permits, approvals or other actions of any person, jurisdiction
or authority required in the reasonable opinion of Thermedics
(including without limitation, confirmation of filing of the
Certificate of Merger with the Secretary of State of the State of
Delaware) for lawful consummation of the transactions
contemplated hereby shall have been obtained, and shall be in
full force and effect, and no such consent, permit, approval or
other action shall contain any provision that in the reasonable
judgment of Thermedics is unduly burdensome.
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(m) Good Standing Certificates. ATI and each
Subsidiary shall have delivered to Thermedics a long-form
corporate good standing certificate from its jurisdiction of
incorporation (or equivalent evidence of each such Subsidiary's
status in the case of certain foreign jurisdictions) and good
standing certificates from each jurisdiction in which ATI or such
Subsidiary is qualified to transact business (or equivalent
evidence of each such Subsidiary's status, if such evidence is
generally available, in the case of certain foreign
jurisdictions).
(n) Officer's Certificate. ATI shall have delivered
to Thermedics a certificate executed by an officer of ATI, dated
the Effective Date, certifying to the fulfillment of the
conditions specified in Section 5.1(a).
(o) Dissenters' Rights. The holders of not more than
1.5% of the ATI Shares shall have demanded and perfected their
right to an appraisal of their ATI Shares in accordance with the
General Corporation Law.
(p) Legal Opinion of Counsel for ATI. Thermedics
shall have received an opinion of Sonnenschein Nath & Rosenthal,
counsel for ATI, dated the Closing Date and in the form attached
hereto as Exhibit F, together with such other opinions of counsel
to the Subsidiaries as Thermedics may reasonably require.
(q) No Litigation or Proceedings with Respect to the
Merger. No legal action or other proceedings to restrain or
prohibit the consummation of the transactions contemplated by
this Agreement shall be pending or threatened.
(r) Documents Satisfactory. The form and substance of
all legal matters contemplated herein and of all papers used or
delivered hereunder shall be reasonably acceptable to Thermedics,
and Thermedics shall have received all documents that it may have
reasonably requested in connection with the transactions
contemplated hereby, in form and substance reasonably
satisfactory to it.
(s) Compliance with Competition Laws. All
authorizations, approvals, consents, permits or waivers required
under any Competition Laws shall have been obtained.
(t) Matters Related to Certain Indebtedness. ATI
shall have delivered to Thermedics the following:
(i) a duly executed copy of a payoff letter from
Bank of America Illinois (f/k/a Continental Bank N.A.), as
agent, with respect to that certain Credit Agreement dated
as of May 20, 1993;
(ii) a duly executed copy of a payoff letter from
State Street Bank & Trust Company, as Trustee, with respect
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to the Massachusetts Industrial Finance Agency $1,000,000
Floating Rate Industrial Revenue Bond - 1985 Series; and
(iii) all documents, including, without
limitation, executed UCC-3 termination statements, as are
necessary to release all liens on the assets of ATI and/or
any of its Subsidiaries which secure the indebtedness
described in clauses (i) and (ii) above.
(u) Orion Research Limited. ATI shall have became the
sole legal and beneficial owner of 100% of the outstanding shares
of capital stock of Orion Research Limited.
Section 5.2. Conditions to Obligations of ATI. The
obligations of ATI to consummate the transactions contemplated
hereby are subject to the satisfaction, on or before the Closing,
of the following conditions (unless waived by ATI in writing in
the manner provided in Section 6.2 hereof):
(a) Representations, Warranties and Performance of
Thermedics and Acquisition. The representations and warranties
of Thermedics and Acquisition set forth in Section 3.3 hereof
shall be accurate on and as of the date hereof, and on and as of
the Closing Date as though made on and as of the Closing Date,
and Thermedics and Acquisition shall have performed all
obligations and complied with all covenants required to be
performed or to be complied with by them under this Agreement
prior to the Closing.
(b) Authorization. All action necessary to authorize
the execution, delivery and performance hereof by Thermedics and
Acquisition and the consummation of the transactions contemplated
hereby shall have been duly and validly taken by Thermedics and
Acquisition. Thermedics and Acquisition shall have furnished ATI
with a copy of all resolutions adopted by the Board of Directors
of Thermedics and Acquisition and the shareholders of Acquisition
(if any) in connection with such actions, certified by the
Secretary or an Assistant Secretary of Thermedics and
Acquisition, respectively, together with copies of such other
instruments and documents as ATI shall have reasonably requested.
(c) Consents. Any governmental authority having
jurisdiction over ATI, to the extent that its consent or approval
is required by applicable law or regulation for the performance
of this Agreement or the consummation of the transactions
contemplated hereby, shall have granted any necessary consent or
approval.
(d) Permits and Approvals. Any and all consents,
permits, approvals or other actions of any person, jurisdiction
or authority required in the reasonable opinion of counsel for
ATI (including without limitation, confirmation of filing of the
Certificate of Merger with the Secretary of State of the State of
Delaware) for lawful consummation of the transactions
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contemplated hereby shall have been obtained, and shall be in
full force and effect, and no such consent, permit, approval or
other action shall contain any provision that in the reasonable
judgment of such counsel is unduly burdensome.
(e) ATI Shareholder Approval. The approval by the
Shareholders of the execution, delivery and performance of this
Agreement and the Merger in accordance with the General
Corporation Law shall have been duly and validly obtained.
(f) Good Standing Certificates. Each of Thermedics
and Acquisition shall have delivered to ATI a corporate good
standing certificate from its jurisdiction of incorporation.
(g) Officer's Certificate. Thermedics shall have
delivered to ATI a certificate executed by an officer of
Thermedics, dated the Effective Date, certifying to the
fulfillment of the conditions specified in Section 5.2(a).
(h) No Litigation or Proceedings with Respect to the
Merger. No legal action or other proceedings to restrain or
prohibit the consummation of the transactions contemplated by
this Agreement shall be pending or threatened.
(i) Documents Satisfactory. The form and substance of
all legal matters contemplated herein and of all papers used or
delivered hereunder shall be reasonably acceptable to counsel for
ATI and ATI shall have received all documents that such counsel
may have reasonably requested in connection with the transactions
contemplated hereby, in form and substance reasonably
satisfactory to such counsel.
(j) Legal Opinion of Thermedics' Counsel. ATI shall
have received an opinion of Thermedics' general counsel, dated
the Closing Date and in the form attached hereto as Exhibit G.
(k) Compliance with Competition Laws. All
authorizations, approvals, consents, permits or waivers required
under any Competition Laws shall have been obtained.
ARTICLE 6
MODIFICATION, WAIVER AND TERMINATION
Section 6.1. Modifications and Amendments. The parties may
mutually amend any provision of this Agreement at any time prior
to the Effective Date; provided, however, that any amendment
effected subsequent to the approval of this Agreement by the
Shareholders shall be subject to the restrictions contained in
the General Corporation Law. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing
and signed by all of the parties.
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Section 6.2. Waivers. The parties hereto may, by a written
signed instrument, extend the time for or waive the performance
of any of the obligations of another party hereto or waive
compliance by such other party with any of the covenants or
conditions contained herein.
Section 6.3. Termination. At any time prior to the
Closing, this Agreement may be terminated (a) by mutual consent
of Thermedics and Acquisition, on the one hand, and ATI on the
other; (b) by Thermedics and Acquisition if (i) there has been a
material breach by ATI of a covenant, representation or warranty
contained in this Agreement; (ii) Thermedics has notified ATI in
writing of the existence of such breach; and (iii) the party in
breach has failed to cure such breach within a reasonable period
of time after receiving such notice; (c) by ATI if (i) there has
been a material breach by Thermedics or Acquisition of a
covenant, representation or warranty contained in this Agreement;
(ii) ATI has notified Thermedics in writing of the existence of
such breach; and (iii) Thermedics or Acquisition, as the case may
be, has failed to cure such breach within 30 days after receiving
such notice; (d) by ATI, Thermedics or Acquisition if (i) there
shall be an order of a court in effect preventing consummation of
the Merger or (ii) there shall be any action taken, or any
statute, rule, regulation or order enacted, promulgated, issued
or deemed applicable to this Agreement, by a governmental
authority that would make consummation of the Merger illegal; (e)
by ATI, Thermedics or Acquisition if the Closing does not occur
by November 30, 1995; or (f) by Thermedics or Acquisition if (i)
ATI shall have elected to revise the Disclosure Schedule pursuant
to Section 5.1(a) hereof and (ii) in the sole judgment of
Thermedics, any such additional or revised disclosure has or
could have an adverse effect on the financial condition, assets,
liabilities, earnings, business or prospects of ATI.
Section 6.4. Effect of Termination. If this Agreement
shall be terminated as provided in Section 6.3, this Agreement
shall forthwith become void (except as otherwise provided in
Section 4.5); provided, however, that the foregoing shall not
relieve any party from liability for damages actually incurred as
a result of any breach of this Agreement.
ARTICLE 7
GENERAL
Section 7.1. Notices. All notices, requests, demands,
consents and other communications which are required or permitted
hereunder shall be in writing, and shall be deemed given when
actually received or if earlier, one day after deposit with a
nationally recognized air courier or express mail, charges
prepaid or three days after deposit in the U.S. mail by certified
mail, return receipt requested, postage prepaid, addressed as
follows:
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If to Thermedics or Acquisition:
Thermedics Inc.
470 Wildwood Street
P. O. Box 2999
Woburn, Massachusetts 01888-1799
Attention: President
With a copy to:
Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02254
Attention: General Counsel
If to ATI, to:
Analytical Technology, Inc.
The Schrafft Center
529 Main Street
Boston, Massachusetts 02129
Attention: President
With copies to:
Sonnenschein Nath & Rosenthal
Suite 8000 Sears Tower
233 South Wacker Drive
Chicago, IL 60606
Attention: J. Ross Docksey, Esquire
and to:
Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02254
Attention: General Counsel
or to such other address as any party hereto may designate in
writing to the other parties, specifying a change of address for
the purpose of this Agreement.
Section 7.2. Entire Agreement. This Agreement supersedes
any and all oral or written agreements or understandings
heretofore made relating to the subject matter hereof (including
without limitation the Letter of Intent executed by Thermedics'
parent company, Thermo Electron Corporation, and ATI dated July
19, 1995) and constitutes the entire agreement of the parties
relating to the subject matter hereof.
Section 7.3. Parties in Interest. All covenants and
agreements, representations and warranties contained in this
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Agreement made by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the parties hereto, and their
respective successors, assigns, heirs, executors, administrators
and personal representatives, whether so expressed or not.
Section 7.4. THI Rights; No Other Implied Rights or
Remedies.
(a) THI shall be a party to this Agreement solely for
the purpose of relying on the representations and warranties of
ATI set forth in this Agreement, including without limitation the
representations and warranties set forth in Section 3.2 hereof,
to the same degree that Thermedics is entitled to rely on such
representations and warranties. Accordingly, the parties
acknowledge that THI may seek damages for any such
misrepresentation to the same degree that Thermedics would be
entitled to do so; provided, however, that, subject to the terms
of the Escrow Agreement, THI may enforce its rights and seek such
damages independently and without the prior approval or
cooperation of Thermedics.
(b) Except as set forth in the preceding paragraph or
as otherwise expressly provided herein, nothing herein expressed
or implied is intended or shall be construed to confer upon or to
give any person, firm or corporation, other than the parties
hereto, any rights or remedies under or by reason of this
Agreement.
Section 7.5. Headings. The headings in this Agreement are
inserted for convenience of reference only and shall not be a
part of or control or affect the meaning hereof.
Section 7.6. Severability. If any provision of this
Agreement shall be declared void or unenforceable by any judicial
or administrative authority, the validity of any other provision
shall not be affected thereby.
Section 7.7. Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
Section 7.8. Exhibits. The Exhibits attached hereto and
referred to in this Agreement are a part of this Agreement for
all purposes.
Section 7.9. Assignment. This Agreement and the rights and
duties hereunder shall be binding upon and inure to the benefit
of the successors, assigns, heirs and legal and personal
representatives of the parties hereto, but shall not be
assignable or delegable by any party without the prior written
consent of the other parties and any purported assignment without
such prior written consent shall be null and void, except that
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Thermedics and Acquisition may assign this Agreement, or rights
and duties hereunder, after the Closing Date.
Section 7.10. Further Assurances. ATI will execute and
furnish to Thermedics and Acquisition all documents and will do
or cause to be done all other things that Thermedics or
Acquisition may reasonably request from time to time in order to
give full effect to this Agreement and to effectuate the intent
of the parties.
Section 7.11. Gender. In this Agreement, unless the
context requires otherwise the singular includes the plural, the
plural the singular, the masculine gender includes the neuter,
masculine and feminine genders and vice versa.
Section 7.12. Public Announcement. The content and timing
of any public announcement pertaining to this Agreement shall be
subject to the prior agreement and approval of Thermedics and
ATI.
Section 7.13. Governing Law. This Agreement shall be
governed by the law of the State of Delaware applicable to
agreements made and to be performed wholly within such
jurisdiction, without regard to the conflicts of laws provisions
thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed as of the date first written above.
Thermedics Inc.
[Seal] By: /s/ John W. Wood, Jr.
Title: President
ATI MERGER CORP.
[Seal] By: /s/ John W. Wood, Jr.
Title: President
ANALYTICAL TECHNOLOGY, INC.
[Seal] By: /s/ William J. Kennedy
Title: Chairman and Chief Executive
Officer
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Pursuant to Section 7.4(a):
THERMO INSTRUMENT SYSTEMS INC.
[Seal] By: /s/ Jonathan W. Painter
Title: Treasurer
AA953400063
49