THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THESE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT, AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY
NOT BE SOLD, PLEDGED, MORTGAGED, HYPOTHECATED OR OTHERWISE TRANSFERRED (1)
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT COVERING THESE
SECURITIES OR (2) UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
THERMO INSTRUMENT SYSTEMS INC.
Promissory Note Due August 27, 1999
Hurst, Texas
March 3, 1999
For value received, Thermo Instrument Systems Inc., a Delaware corporation
(the "Company"), hereby promises to pay to Thermo Electron Corporation
(hereinafter referred to as the "Payee"), or its assigns, on or before August
27, 1999, the principal sum of two hundred million dollars ($200,000,000) or
such part thereof as then remains unpaid. The Company shall pay interest from
the date hereof through April 3, 1999 on the principal amount remaining from
time to time unpaid at a rate per annum equal to 5.03%. Thereafter, if the
Company's total U.S. consolidated cash invested with the Payee equals or exceeds
the aggregate outstanding principal amount of this Note, the Company shall pay
interest on the principal amount remaining from time to time unpaid at a rate
per annum equal to the Dealer Commercial Paper Rate for 30-day maturities as
reported in the Wall Street Journal on the first business day of each fiscal
month of the Company (the "DCP Rate"), plus twenty-five (25) basis points, which
rate shall be adjusted on the second business day of each fiscal month of the
Company and shall be in effect for the entirety of such fiscal month. If,
however, the Company's total U.S. consolidated cash invested with the Payee is
less than the aggregate outstanding principal amount of this Note, (A) the
Company shall pay interest at a rate per annum equal to the DCP Rate plus one
hundred twenty-five (125) basis points on that portion (the "Excess Portion") of
the unpaid principal amount equal to (i) the aggregate outstanding principal
amount, minus (ii) the Company's total U.S. consolidated cash invested with the
Payee, and (B) the Company shall pay interest at a rate per annum equal to the
DCP Rate plus twenty-five (25) basis points on that portion of the unpaid
principal amount equal to (i) the aggregate outstanding principal amount, minus
(ii) the Excess Portion. Each of the interest rates set forth in the prior
sentence shall be adjusted on the second business day of each fiscal month of
the Company and shall be in effect for the entirety of such fiscal month.
Interest is payable in arrears on the third day of each fiscal month of the
Company, until all amounts outstanding are paid in full. Overdue principal and
interest shall bear interest at a rate per annum equal to the rate of interest
announced from time to time by BankBoston Corporation at its head office in
Boston, Massachusetts as its "base rate" plus one percent (1%). Principal and
all accrued but unpaid interest shall be due and payable on August 27, 1999.
Principal and interest shall be payable in lawful money of the United States of
America, in immediately available funds, at the principal office of the Payee or
at such other place as the legal holder may designate from time to time in
writing to the Company. Interest shall be computed on an actual 360-day basis.
This Note may be prepaid at any time or from time to time, in whole or in
part, without any premium or penalty. All prepayments shall be applied first to
accrued interest and then to principal. The then unpaid principal amount of, and
interest outstanding on, this Note shall be
2
and become immediately due and payable without notice or demand, at the option
of the holder hereof, upon the occurrence of any of the following events:
(a) the failure of the Company to pay any amount due hereunder
within ten (10) days of the date when due;
(b) any representation, warranty or statement made or furnished to
the Payee by the Company in connection with this Note or the transaction
from which it arises shall prove to have been false or misleading in any
material respect as of the date when made or furnished;
(c) the failure of the Company to pay its debts as they become due,
the insolvency of the Company, the filing by or against the Company of any
petition under the U.S. Bankruptcy Code (or the filing of any similar
petition under the insolvency law of any jurisdiction), or the making by
the Company of an assignment or trust mortgage for the benefit of
creditors or the appointment of a receiver, custodian or similar agent
with respect to, or the taking by any such person of possession of, any
property of the Company;
(d) the sale by the Company of all or substantially all of its
assets;
(e) the merger or consolidation of the Company with or into any
other corporation in a transaction in which the Company is not the
surviving entity;
(f) the issuance of any writ of attachment, by trustee process or
otherwise, or any restraining order or injunction not removed, repealed or
dismissed within thirty (30) days of issuance, against or affecting the
person or property of the Company or any liability or obligation of the
Company to the holder hereof; and
(g) the suspension of the transaction of the usual business of the
Company.
Upon surrender of this Note for transfer or exchange, a new Note or new
Notes of the same tenor dated the date to which interest has been paid on the
surrendered Note and in an aggregate principal amount equal to the unpaid
principal amount of the Note so surrendered will be issued to, and registered in
the name of, the transferee or transferees. The Company may treat the person in
whose name this Note is registered as the owner hereof for the purpose of
receiving payment and for all other purposes.
In case any payment herein provided for shall not be paid when due, the
Company further promises to pay all cost of collection, including all reasonable
attorneys' fees.
No delay or omission on the part of the Payee in exercising any right
hereunder shall operate as a waiver of such right or of any other right of the
Payee, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of the same or any other right on any future occasion. The
Company hereby waives presentment, demand, notice of prepayment, protest and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note. The undersigned hereby assents
to any indulgence and any extension of time for payment of any indebtedness
evidenced hereby granted or permitted by the Payee.
This Note shall be governed by and construed in accordance with, the laws
of the Commonwealth of Massachusetts and shall have the effect of a sealed
instrument.
THERMO INSTRUMENT SYSTEMS INC.
By: /s/Earl R. Lewis
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Earl R. Lewis
President and CEO
[Corporate Seal]
Attest:
/s/Sandra Lambert
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Sandra L. Lambert
Secretary