EXHIBIT 10(a)
ASSET AND SHARE PURCHASE AGREEMENT
by and among
Thermo Instrument Systems Inc.,
ATI Acquisition Corp.,
Analytical Technology, Inc.,
and, for certain limited purpuses,
Thermedics Inc.
Executed on November 29, 1995
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ASSET AND SHARE PURCHASE AGREEMENT
THIS AGREEMENT, dated as of the 29th day of November, 1995,
by and among Thermo Instrument Systems Inc., a Delaware
corporation having an office at 504 Airport Road, Santa Fe, New
Mexico 87504 ("Thermo Instrument"), ATI Acquisition Corp., a
Wisconsin corporation and a wholly-owned subsidiary of Thermo
Instrument ("Acquisition"), and Analytical Technology, Inc., a
Delaware corporation having an office at The Schrafft Center, 529
Main Street, Boston, Massachusetts 02129 ("ATI"). Thermedics
Inc. ("Thermedics") is made a party to this Agreement for
purposes of Section 1.3 hereof.
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 TRANSACTION
Section 1.1. Sale and Purchase of Assets and Shares.
(a) Assets and Shares to be Purchased. At the Closing
(as defined in Section 2.1 hereof), ATI will sell, convey,
transfer, assign and deliver or cause to be sold, conveyed,
transferred, assigned and delivered to Acquisition, and
Acquisition will purchase from ATI, for the purchase price
specified in Section 1.2 and subject to the terms and conditions
hereof, the "Assets," as hereinafter defined. The term "Assets"
shall mean all of ATI's right, title and interest in and to all
property, whether real or personal, whether tangible or
intangible, wheresoever situated and whether or not specifically
referred to herein or in any instrument or conveyance delivered
pursuant hereto, primarily employed in or primarily related to
its analytical instrument business, including without limitation
the business carried on by its Mattson Instruments, Unicam
Analytical Systems and Cryolect Scientific divisions and the
TGA/DCA and Capillary Electrophoresis product lines of its Cahn
division (the "Business"), and including without limitation, the
personal property described below in this Section 1.1(a):
(i) Real Property. All of ATI's rights under
leases relating to the real property located at (i) 1004 Fourier
Drive, Madison, Wisconsin and (ii) 2109-2113 Eagle Drive,
Middleton, Wisconsin;
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(ii) Inventories. All inventories of raw
materials, work in process, finished products and resale
merchandise, scrap inventory, expendable manufacturing supplies
and similar items owned by ATI and related to the Business;
(iii) Machinery and Equipment. All machinery and
equipment, wherever located, that are owned by ATI and that are
primarily employed in, or primarily relate to, the manufacture,
production, assembly, handling, distribution and sale of products
for the Business, together with the spare parts inventories and
all manufacturing or production tools and maintenance supplies
pertaining thereto;
(iv) Furniture and Fixtures. All office
furniture, office equipment and office supplies and computer
hardware owned by ATI that are primarily employed in, or
primarily related to, the Business (except for such items located
at ATI's corporate headquarters);
(v) Personal Property Leases. All right, title
and interest of ATI under leases for personal property included
in the Assumed Liabilities (as defined in Section 1.4 hereof);
(vi) Patents and Trademarks. All right, title
and interest of ATI in, under or to all patents, trademarks,
service marks, copyrights, trade names, logos, and applications
therefor related primarily to the Business, including (i) any
logo and any corporate and/or trade name including the words
"Mattson," "Unicam" and/or "Cryolect" and (ii) the patents,
trademarks, service marks, copyrights, trade names, logos, and
applications therefor listed or described on Schedule 1.1(a)(vi)
hereto;
(vii) Technical Information. All inventions,
discoveries (whether patentable or unpatentable), processes,
designs, know-how, trade secrets, proprietary data, technology
and other intellectual property of all kinds owned by or licensed
to ATI and that are primarily employed in, or primarily related
to, the Business, including all drawings, plans, specifications,
processes, patterns, dies, designs, blueprints, records, data,
product development records, production outlines, information, or
knowledge and procedures relating to any of such intellectual
property;
(viii) Contract Rights and Miscellaneous
Intangibles. All right, title and interest of ATI in, under and
to all sales, distribution and purchase agreements, and the other
agreements, contracts, sales orders, backlog, and commitments of
ATI related to the Business and in, under and to all equipment
lists, parts lists, computer tapes and discs, systems and
programs, proprietary software that pertain to the Assets and the
operation and use thereof in the Business;
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(ix) Cash and Cash Equivalents. All right, title
and interest of ATI in cash, cash in banks, cash equivalents,
deposits, investments, funds, certificates of deposit, drafts,
checks and similar instruments that are outstanding and in
existence on the Closing Date (as defined in Section 2.1 hereof)
and that are related to the Business;
(x) Accounts Receivable. All accounts and notes
receivable of ATI existing on the Closing Date and related to
products sold or services performed by the Business, as well as
ATI's right to payment for products sold or services performed by
the Business but not yet billed as of the Closing, and all
accounts and notes receivable of ATI existing on the Closing Date
due from or payable by any of the Acquired Companies (as defined
in Section 1.1(a)(xii) below);
(xi) Motor Vehicles. All cars, trucks and other
motor vehicles listed or described on Schedule 1.1(a)(xi) hereto;
(xii) Shares of Certain Subsidiaries. All of the
issued and outstanding shares of capital stock of each of the
following companies: (A) Mattson Instruments, Limited (a company
organized under the laws of the United Kingdom); (B) Unicam
Technology Limited (a company organized under the laws of the
United Kingdom); (C) Unicam S.A. (a company organized under the
laws of Belgium); Unicam Analytical Inc. (a company organized
under the laws of Ontario); (D) Unicam France S.A. (a company
organized under the laws of France); (E) Unicam Italia SpA (a
company organized under the laws of Italy); (F) Unicam Analytical
Technology Netherlands B.V. (a company organized under the laws
of the Netherlands); and (G) Unicam Analytische System GmbH (a
company organized under the laws of Germany) (all such shares of
capital stock, collectively, the "Shares"); (each of such
companies, and each entity of which fifty percent (50%) or more
of the effective voting power or equity interest is owned
directly or indirectly by any of such companies, including
without limitation: (I) Unicam Limited (a company organized under
the laws of the United Kingdom) and (II) Unicam Export Limited (a
company organized under the laws of the United Kingdom), each an
"Acquired Company" and, collectively, the "Acquired Companies");
(xiii) Books and Records. All general books of
account, books of original entry and other records of ATI,
wherever located, that relate primarily to the Business,
including without limitation customer and supplier lists, and all
general books of account and books of original entry that
comprise the permanent accounting or tax records and books and
records (including corporate minutes and stock transfer records)
of each Acquired Company that such Acquired Company is required
to retain pursuant to any statute, rule or regulation;
(xiv) Licenses. All existing permits, licenses,
regulatory approvals and franchises of or from any national,
regional, state or local government or authority relating
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primarily to the Business (to the extent transfer is permitted by
law);
(xv) Tax Refunds. All of ATI's right, title and
interest in and to government refunds of federal, state, local,
foreign and provincial income, capital gains, property transfer,
payroll, withholding, excise, sales, use, use and occupancy,
mercantile, real estate, personal property, value added, capital
stock, franchise or other taxes and estimated taxes relating
thereto (and interest and penalties thereon) with respect to the
Business; and
(xvi) Miscellaneous Supplies. All catalogs,
brochures, product literature, printed materials, shipping and
packaging materials and labels, cartons and shipping containers,
pallets, shipping equipment, graphics, art work, photographic
film, slides, negatives, color separations, printer's and
photographer's plates and so-called "camera ready materials" and
sales and advertising materials owned by ATI and that are either
physically located at any of the Property or that are primarily
employed in, or primarily related to, the Business.
(b) Retained Assets. Notwithstanding anything
contained in Section 1.1(a) to the contrary, ATI shall retain,
and the Assets shall not include, any property, whether real or
personal, whether tangible or intangible, wheresoever situated
and whether or not specifically referred to herein, owned by ATI
and primarily employed in or primarily related to its laboratory
products business, including without limitation the business
carried on by its Orion Research, Cahn Instruments and/or Russell
pH divisions (collectively, the "Laboratory Products Division"),
and including without limitation, the personal property described
below in this Section 1.1(b) (collectively, the "Retained
Assets"):
(i) Real Property. ATI's rights under leases
relating to the real property located at (i) The Schrafft Center,
529 Main Street, Boston, Massachusetts; and (ii) Industrialville
Industrial Park, State Highway Number 190, Km 1.5, in Carolina,
Puerto Rico;
(ii) Inventories. Any inventories of raw
materials, work in process, finished products and resale
merchandise, scrap inventory, expendable manufacturing supplies
and similar items owned by ATI and related to the Laboratory
Products Division;
(iii) Machinery and Equipment. Any machinery and
equipment, wherever located, that are owned by ATI and that are
primarily employed in, or primarily relate to, the manufacture,
production, assembly, handling, distribution and sale of products
for the Laboratory Products Division, together with the spare
parts inventories and any manufacturing or production tools or
maintenance supplies pertaining thereto;
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(iv) Furniture and Fixtures. Any office
furniture, office equipment or office supplies or computer
hardware owned by ATI that are primarily employed in, or
primarily related to, the Laboratory Products Division, including
without limitation all such items located at ATI's corporate
headquarters;
(v) Personal Property Leases. Any right, title
or interest of ATI under leases for personal property not
specifically included in the Assumed Liabilities;
(vi) Patents and Trademarks. Any right, title or
interest of ATI in, under or to any patents, trademarks, service
marks, copyrights, trade names, logos, and applications therefor
related primarily to the Laboratory Products Division, including
(i) any logo and any corporate and/or trade name including the
words "Orion, "Cahn" and/or "Russell pH";
(vii) Technical Information. Any inventions,
discoveries (whether patentable or unpatentable), processes,
designs, know-how, trade secrets, proprietary data, technology or
other intellectual property of any kind owned by or licensed to
ATI that are primarily employed in, or primarily related to, the
Laboratory Products Division, including any drawings, plans,
specifications, processes, patterns, dies, designs, blueprints,
records, data, product development records, production outlines,
information, or knowledge and procedures relating to any of such
intellectual property;
(viii) Contract Rights and Miscellaneous
Intangibles. Any right, title or interest of ATI in, under or to
any sales, distribution and purchase agreements, and the other
agreements, contracts, sales orders, backlog, and commitments of
ATI related to the Laboratory Products Division or in, under or
to any equipment lists, parts lists, computer tapes and discs,
systems and programs, proprietary software that pertain to the
Retained Assets and the operation and use thereof by the
Laboratory Products Division;
(ix) Cash and Cash Equivalents. Any right, title
or interest of ATI in cash, cash in banks, cash equivalents,
deposits, investments, funds, certificates of deposit, drafts,
checks and similar instruments that are outstanding and in
existence on the Closing Date and that are related to the
Laboratory Products Division;
(x) Accounts Receivable. Any accounts or notes
receivable of ATI existing on the Closing Date and related to
products sold or services performed by the Laboratory Products
Division, or ATI's right to payment for products sold or services
performed by the Laboratory Products Division but not yet billed
as of the Closing;
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(xi) Motor Vehicles. Any cars, trucks or other
motor vehicles listed or described on Schedule 1.1(b)(xi) hereof;
(xii) Shares of Capital Stock. The capital stock
of any corporation or company other than the companies identified
in Section 1.1(a)(xii);
(xiii) Books and Records. Any general books of
account, books of original entry or other records of ATI,
wherever located, that relate primarily to the Laboratory
Products Division;
(xiv) Licenses. Any existing permits, licenses,
regulatory approvals or franchises of or from any national,
regional, state or local government or authority relating
primarily to the Laboratory Products Division;
(xv) Tax Refunds. Any of ATI's right, title or
interest in or to government refunds of federal, state, local,
foreign and provincial income, capital gains, property transfer,
payroll, withholding, excise, sales, use, use or occupancy,
mercantile, real estate, personal property, value added, capital
stock, franchise or other taxes and estimated taxes relating
thereto (and interest and penalties thereon) with respect to the
Laboratory Products Division; or
(xvi) Miscellaneous Supplies. Any catalogs,
brochures, product literature, printed materials, shipping and
packaging materials or labels, cartons or shipping containers,
pallets, shipping equipment, graphics, art work, photographic
film, slides, negatives, color separations, printer's and
photographer's plates or so-called "camera ready materials" or
sales or advertising materials owned by ATI and that are
primarily employed in, or primarily related to, the Laboratory
Products Division.
Section 1.2. Purchase Price. The aggregate purchase price
to be paid to ATI by Acquisition for the Assets shall be
$34,932,830 (as reduced pursuant to following sentence and as
adjusted pursuant to the terms of Section 1.3, the "Purchase
Price"), plus the assumption of certain liabilities of ATI as
hereinafter provided. At the Closing, Acquisition shall deliver
to ATI Acquisition's promissory note, in the form set forth as
Exhibit A to this Agreement (the "Note"), representing the
obligation of Acquisition to pay the Purchase Price to ATI in
cash immediately after the consummation of the transactions
contemplated by the TMD Agreement.
Section 1.3. Adjustments to Purchase Price.
(a) Thermo Instrument and Acquisition acknowledge
that, pursuant to Section 1.3 of the TMD Agreement, Thermedics
shall cause ATI to prepare a consolidated balance sheet of ATI
and its subsidiaries, as of the end of ATI's fiscal month next
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preceding the Closing Date, but without giving effect to the
transactions contemplated by this Agreement (the "Closing Balance
Sheet"), which Closing Balance Sheet shall be the basis for an
adjustment of the aggregate amount paid by Thermedics pursuant to
the TMD Agreement (the "TMD Purchase Price"). Thermedics, Thermo
Instrument and Acquisition agree that, in the event that the TMD
Purchase Price is actually adjusted pursuant to Section 1.3 of
the TMD Agreement, then the Purchase Price payable hereunder by
Acquisition shall then be either increased or decreased, as may
be appropriate, to the extent that such adjustment to the TMD
Purchase Price is attributable to the operations of the Business.
(b) In the event that the parties to the TMD Agreement
find it necessary or desirable to retain an accounting firm to
resolve any dispute between them with respect to the Closing
Balance Sheet pursuant to Section 1.3(d) of the TMD Agreement,
then Acquisition shall reimburse Thermedics for one-half of the
portion of the fees and expenses of such accounting firm that are
actually paid by Thermedics.
(c) If Thermedics and Thermo Instrument are unable to
agree on the portion of any adjustment to the TMD Purchase Price
that is attributable to the operations of the Business, then they
shall retain a nationally recognized accounting firm to resolve
any dispute between them and the determination of such accounting
firm shall be binding upon them and their respective
subsidiaries. In such event, Thermedics and Thermo Instrument
shall each pay one-half of such accounting firm's fees and
expenses.
Section 1.4. Assumption of Liabilities. Subject to the
terms and conditions contained in this Agreement, Acquisition
shall, at the Closing, assume and agree to pay or perform, or
cause to be paid or performed, only (a) those obligations and
liabilities of ATI that (i) are accurately reflected on the
unaudited consolidated balance sheet of ATI as at September 30,
1995 (the "Pre-Closing Balance Sheet") and (ii) relate solely or
primarily to the Business (including without limitation all such
obligations and liabilities of ATI to any of the Acquired
Companies); and (b) those liabilities, duties and obligations
under contracts or agreements that comprise a portion of the
Assets (together, the "Assumed Liabilities"). Acquisition will
not assume any liabilities of the ATI other than Assumed
Liabilities.
Section 1.5. Escrow Account. Thermo Instrument and
Acquisition acknowledge that pursuant to Section 1.5 of the TMD
Agreement, for the purpose of providing support of the
representations and warranties of ATI contained herein and to
induce Thermo Instrument and Acquisition to enter into this
Agreement, $5,000,000 shall be withheld from the payment of the
TMD 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
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Closing by and among Thermedics, Thermo Instrument, ATI, the
Shareholder Representative (as defined in the TMD Agreement) and
BayBank N.A., as escrow agent, in substantially the form of
Exhibit B hereto (the "Escrow Agreement"). The funds placed in
escrow pursuant to Section 1.5 of the TMD Agreement, 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. Adoption by Shareholders. This Agreement
shall be promptly submitted for approval to ATI's shareholders
(the "Shareholders") either at a duly called and held shareholder
meeting (the "Shareholder Meeting") or by majority written
consent pursuant to the General Corporation Law of the State of
Delaware (the "General Corporation Law"). The Board of Directors
of ATI shall recommend to the Shareholders the approval of this
Agreement and the transactions contemplated hereby.
Section 1.7. Allocation of Purchase Price. The Purchase
Price shall be allocated among the Assets and the Shares as set
forth in Exhibit C hereto. ATI and Acquisition each will report
the federal, state, provincial, foreign and local income and
other tax consequences of the purchase and sale contemplated
hereby in a manner consistent with such allocation and will not
take any position inconsistent therewith upon examination of any
tax return, in any refund claim, in any litigation, or otherwise.
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.
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Section 2.2. Deliveries and Proceedings at Closing.
(a) Deliveries by ATI. ATI will deliver to
Acquisition such deeds, bills of sale and share transfer
documentation and other instruments of conveyance, transfer and
assignment, dated the Closing Date and in form and substance
reasonably satisfactory to Acquisition's counsel, as shall in the
judgment of such counsel be sufficient to vest in Acquisition all
of the right, title and interest in and to the Assets (including
the Shares).
(b) Deliveries by Acquisition. Acquisition will
deliver to ATI the Note and such instruments of assumption of
liabilities, dated the Closing Date and in form and substance
reasonably satisfactory to ATI's counsel, as shall in the
judgment of such counsel be sufficient to vest in Acquisition the
obligations to satisfy and discharge the Assumed Liabilities.
Section 2.3. Additional Action to Assure Transferees.
Nothing in this Agreement shall be construed to assign any
contract, right, commitment, agreement, permit, franchise, or
claim included in the Assets (individually, a "Purchased Contract
Right") which is by its terms or by law nonassignable without the
consent of the other party or parties thereto, unless such
consent shall have been given, or as to which all the remedies
for the enforcement thereof enjoyed by ATI would not, as a matter
of law, pass to Acquisition as an incident of the assignments
provided for by this Agreement. In order, however, to provide
Acquisition the full realization and value of every Purchased
Contract Right of the character hereinbefore described, ATI at
and after the Closing will, at the request and under the
direction of Acquisition and in the name of ATI or otherwise as
Acquisition shall specify, take or cause to be taken all such
action (including without limitation the appointment of
Acquisition as attorney-in-fact for ATI, but with powers limited
to the specific purposes contemplated hereby) and do or cause to
be done all such things as shall in the reasonable opinion of
Acquisition be necessary or proper to (a) assure that the rights
of ATI under all Purchased Contract Rights shall be preserved for
the benefit of Acquisition, and (b) facilitate receipt by
Acquisition of the consideration to which ATI would otherwise be
entitled in and under all Purchased Contract Rights, which
consideration shall be held for the benefit of, and shall be
delivered to, Acquisition. In order to accomplish the foregoing,
ATI may designate Acquisition as a subcontractor to perform
obligations of ATI under any Purchased Contract Rights.
ARTICLE 3
[Intentionally Omitted]
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ARTICLE 4
COVENANTS
Section 4.1. 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 4.2. Shareholders' Approval. ATI shall take all
action necessary in accordance with applicable law to submit this
Agreement to the Shareholders for approval and adoption at the
earliest possible time. 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 transactions contemplated
hereby. 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 4.3. Certain Employee Benefits Matters.
(a) Thermo Instrument 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,
Thermo Instrument will give employees of the Acquired Companies
credit for service with such Acquired Companies with respect to
any of Thermo Instrument's 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 Thermo Instrument, in
accordance with the terms thereof.
(d) As permitted by Revenue Procedure 84-77, Thermo
Instrument shall be responsible to provide employees of the
Business a statement on Form W-2 covering calendar year 1995.
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ATI shall provide to Thermo Instrument all records concerning
1995 compensation and withholding, through the Closing Date, for
each such employee.
(e) 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.
Section 4.4. 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. Notwithstanding the foregoing, this Section 4.4
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 4.5. Books and Records; Access.
(a) Books and Records. For a period of seven years
(or such longer period as may be required by law or as may be
reasonably requested by Thermo Instrument as a result of audits,
tax contests or pending disputes) from the Closing Date, (i) ATI
shall not dispose of or destroy any of their business records and
files to the extent they relate primarily to the Business without
first offering to turn over possession thereof to Thermo
Instrument, by written notice at least 60 days prior to the
proposed date of such disposition or destruction; (ii) ATI shall
allow Thermo Instrument and its representatives access to such
records and files, during normal working hours at its principal
place of business or at any location where such records or files
are stored; and (iii) Thermo Instrument shall have the right, at
its own expense, to make copies of any such records and files;
provided, however, that any such access or copying shall be had
or done in such manner so as not to unreasonably interfere with
normal conduct of ATI's business. For a period of seven years
(or such longer period as may be required by law or as may be
reasonably requested by ATI as a result of audits, tax contests
or pending disputes) from the Closing Date, (i) Thermo Instrument
shall not dispose of or destroy any of their business records or
files to the extent they relate primarily to the Business as
conducted prior to the Closing Date without first offering to
turn over possession thereof to ATI, by written notice at least
60 days prior to the proposed date of such disposition or
destruction; (ii) Thermo Instrument shall allow ATI and its
representatives access to such records and files during normal
working hours at its principal place of business or at any
location where such records and files are stored; and (iii) ATI
shall have the right, at its own expense, to make copies of any
such records and files; provided, however, that any such access
or copying shall be had or done in such manner so as not to
unreasonably interfere with normal conduct of Thermo Instrument's
business.
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(b) Access. Each party shall use its best efforts to
afford the other parties access to (i) in the case of ATI,
employees of ATI who remain employees of ATI following the
Closing Date but are familiar with the Business and (ii) in the
case of Thermo Instrument, employees of the Business, as any such
other party shall reasonably request for its proper corporate
purposes, including, without limitation, the defense of legal
proceedings or the preparation and audit of tax returns. Such
access may include interviews or attendance at depositions or
legal proceedings; provided, however, that in any event all
out-of-pocket expenses (excluding wage and salaries) reasonably
incurred by any party in connection with this Section 4.5(b)
shall be paid or promptly reimbursed by the party requesting such
services.
ARTICLE 5
CONDITIONS TO OBLIGATIONS
Section 5.1. Conditions to Obligations of Thermo Instrument
and Acquisition. The obligations of Thermo Instrument 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 Thermo
Instrument 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
of the TMD Agreement 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 TMD
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 and the TMD Agreement
prior to the Closing. ATI shall be permitted to deliver a
revised Disclosure Schedule (as defined in the TMD Agreement) to
TMD at any time prior to the Closing, provided, however, that
Thermo Instrument shall be afforded not less than five business
days prior to the Closing to review any such revised Disclosure
Schedule and provided, further, that Thermo Instrument 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 Thermo Instrument, 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
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the approval by the Shareholders of the execution, delivery and
performance of this Agreement and the transactions contemplated
hereby in accordance with the General Corporation Law shall have
been duly and validly taken by ATI. ATI shall have furnished
Thermo Instrument 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 Thermo Instrument shall have reasonably requested.
(c) TMD Transaction. All conditions precedent to the
consummation of the TMD Transaction (other than the consummation
of the transactions contemplated by this Agreement) shall have
been satisfied or waived pursuant to the TMD Agreement.
(d) Consents. Any governmental authority having
jurisdiction over any Acquired Company, Thermo Instrument 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.
(e) Good Standing Certificates. ATI and each Acquired
Company (to the extent that each such Acquired Company is
organized in a jurisdiction where such certificates are generally
available) shall have delivered to Thermo Instrument a long-form
corporate good standing certificate from its jurisdiction of
incorporation (or equivalent evidence of each such Acquired
Company's status in the case of certain foreign jurisdictions)
and good standing certificates from each jurisdiction in which
ATI or such Acquired Company is qualified to transact business
(or equivalent evidence of each such Acquired Company's status in
the case of certain foreign jurisdictions).
(f) Officer's Certificate. ATI shall have delivered
to Thermo Instrument a certificate executed by an officer of ATI,
dated the Closing Date, certifying to the fulfillment of the
conditions specified in Section 5.1(a).
(g) Legal Opinion of Counsel for ATI. Thermo
Instrument shall have received an opinion of Sonnenschein Nath &
Rosenthal, counsel for ATI, dated the Closing Date and in the
form attached hereto as Exhibit D, together with such other
opinions of counsel to the Acquired Companies as Thermo
Instrument may reasonably require.
(h) No Litigation or Proceedings with Respect to this
Agreement. No legal action or other proceedings to restrain or
prohibit the consummation of the transactions contemplated by
this Agreement shall be pending or threatened.
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(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 Thermo
Instrument, and Thermo Instrument 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.
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) Performance of Covenants. Thermo Instrument 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 Thermo
Instrument and Acquisition and the consummation of the
transactions contemplated hereby shall have been duly and validly
taken by Thermo Instrument and Acquisition. Thermo Instrument
and Acquisition shall have furnished ATI with a copy of all
resolutions adopted by the Board of Directors of Thermo
Instrument and Acquisition in connection with such actions,
certified by the Secretary or an Assistant Secretary of Thermo
Instrument 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 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
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 transactions contemplated hereby in accordance
with the General Corporation Law shall have been duly and validly
obtained.
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PAGE
(f) Good Standing Certificates. Each of Thermo
Instrument and Acquisition shall have delivered to ATI a
corporate good standing certificate from its jurisdiction of
incorporation.
(g) Officer's Certificate. Thermo Instrument shall
have delivered to ATI a certificate executed by an officer of
Thermo Instrument, dated the Closing Date, certifying to the
fulfillment of the conditions specified in Section 5.2(a).
(h) No Litigation or Proceedings with Respect to this
Agreement. 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 Thermo Instrument's Counsel. ATI
shall have received an opinion of Thermo Instrument's general
counsel, dated the Closing Date and in the form attached hereto
as Exhibit E.
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 Closing 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.
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 Thermo Instrument and Acquisition, on the one hand, and ATI on
the other; (b) by Thermo Instrument and Acquisition if (i) there
has been a material breach by ATI of a covenant, representation
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PAGE
or warranty contained in this Agreement or in the TMD Agreement;
(ii) Thermo Instrument 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 Thermo Instrument or Acquisition of a
covenant, representation or warranty contained in this Agreement;
(ii) ATI has notified Thermo Instrument in writing of the
existence of such breach; and (iii) Thermo Instrument or
Acquisition, as the case may be, has failed to cure such breach
within 30 days after receiving such notice; (d) by ATI, Thermo
Instrument or Acquisition if (i) there shall be an order of a
court in effect preventing consummation of the transactions
contemplated by this Agreement 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
transactions contemplated by this Agreement illegal; (e) by ATI,
Thermo Instrument or Acquisition if the Closing does not occur by
November 30, 1995; or (f) by Thermo Instrument 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 Thermo Instrument, 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 4.4); 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:
If to Thermo Instrument or Acquisition:
Thermo Instrument Systems Inc.
c/o Thermo Jarrell Ash Corporation
27 Forge Parkway
Franklin, Massachusetts 02038
Attention: President
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PAGE
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, Esq.
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 Thermo
Instrument's 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
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. No Implied Rights or Remedies. Except 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
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PAGE
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
Thermo Instrument 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 Thermo Instrument and Acquisition all documents and
will do or cause to be done all other things that Thermo
Instrument 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 Thermo Instrument
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.
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PAGE
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed as of the date first written above.
THERMO INSTRUMENT SYSTEMS INC.
[Seal] By: /s/ Jonathan W. Painter
Title: Treasurer
ATI ACQUISITION CORP.
[Seal] By: /s/ Jonathan W. Painter
Title: Treasurer
ANALYTICAL TECHNOLOGY, INC.
[Seal] By: /s/ William J. Kennedy
Title: Chairman and Chief Executive
Officer
Thermedics Inc. hereby joins this Agreement as a party for
purposes of the rights and obligations set forth in Section 1.3
hereof.
THERMEDICS INC.
[Seal] By: /s/ John W. Wood, Jr.
Title: President
AA953410015
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