EXHIBIT 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
THERMO ELECTRON CORPORATION,
TRUMPET MERGER CORPORATION
AND
FISHER SCIENTIFIC INTERNATIONAL INC.
DATED AS OF MAY 7, 2006
AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS
Page
----
ARTICLE I
THE MERGER
SECTION 1.1. The Merger.................................................................. 2
SECTION 1.2. Closing..................................................................... 2
SECTION 1.3. Effective Time.............................................................. 2
SECTION 1.4. Effects of the Merger....................................................... 2
SECTION 1.5. Organizational Documents of the Surviving Corporation....................... 2
SECTION 1.6 Directors and Officers of the Surviving Corporation......................... 2
SECTION 1.7. Governance.................................................................. 3
SECTION 1.8. Directors of Thermo Electron at the Effective Time.......................... 3
ARTICLE II
EFFECTS OF THE MERGER; EXCHANGE OF CERTIFICATES
SECTION 2.1. Effect on Capital Stock..................................................... 4
SECTION 2.2. Exchange of Shares and Certificates......................................... 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of Fisher.................................... 8
SECTION 3.2. Representations and Warranties of Thermo Electron and Merger Sub............ 31
-i-
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 4.1. Conduct of Business......................................................... 55
SECTION 4.2. No Solicitation............................................................. 59
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1. Preparation of SEC Documents; Stockholders' Meetings........................ 61
SECTION 5.2. Accountant's Letters........................................................ 63
SECTION 5.3. Access to Information; Confidentiality...................................... 63
SECTION 5.4. Reasonable Best Efforts..................................................... 64
SECTION 5.5. Indemnification and Insurance............................................... 66
SECTION 5.6. Fees and Expenses........................................................... 67
SECTION 5.7. Public Announcements........................................................ 67
SECTION 5.8. Listing..................................................................... 67
SECTION 5.9. Tax-Free Reorganization Treatment........................................... 67
SECTION 5.10. Conveyance Taxes............................................................ 67
SECTION 5.11. Equity Awards and Employee Benefits......................................... 68
SECTION 5.12. Honoring of Collective Bargaining Agreements; Represented Employees......... 71
SECTION 5.13. Affiliates.................................................................. 71
SECTION 5.14. Notification of Certain Matters............................................. 72
SECTION 5.15. Section 16 Matters.......................................................... 72
SECTION 5.16. State Takeover Laws......................................................... 72
SECTION 5.17. Reservation of Thermo Electron Common Stock................................. 73
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Conditions to Each Party's Obligation to Effect the Merger.................. 73
SECTION 6.2. Conditions to Obligations of Fisher......................................... 74
SECTION 6.3. Conditions to Obligations of Thermo Electron and Merger Sub................. 75
-ii-
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
SECTION 7.1. Termination................................................................. 75
SECTION 7.2. Effect of Termination and Payment........................................... 77
SECTION 7.3. Amendment................................................................... 78
SECTION 7.4. Extension; Waiver........................................................... 79
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1. Nonsurvival of Representations and Warranties............................... 79
SECTION 8.2. Notices..................................................................... 79
SECTION 8.3. Definitions................................................................. 80
SECTION 8.4. Terms Defined Elsewhere..................................................... 83
SECTION 8.5. Interpretation.............................................................. 86
SECTION 8.6. Counterparts................................................................ 87
SECTION 8.7. Entire Agreement; No Third-Party Beneficiaries.............................. 87
SECTION 8.8. Governing Law............................................................... 87
SECTION 8.9. Assignment.................................................................. 87
SECTION 8.10. Consent to Jurisdiction..................................................... 87
SECTION 8.11. Headings, etc............................................................... 87
SECTION 8.12. Severability................................................................ 87
SECTION 8.13. Failure or Indulgence Not Waiver; Remedies Cumulative....................... 88
SECTION 8.14. Waiver of Jury Trial........................................................ 88
SECTION 8.15. Specific Performance........................................................ 88
Exhibit 1.7(a) Amendment to By-Laws of Thermo Electron
Exhibit 1.8 Members of the Board of Directors of Thermo Electron and its Committees
Exhibit 5.13 Form of Affiliate Letter Agreement
-iii-
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of May 7, 2006, by and among THERMO ELECTRON CORPORATION, a
Delaware corporation ("Thermo Electron"), TRUMPET MERGER CORPORATION, a Delaware
corporation and a direct wholly-owned subsidiary of Thermo Electron ("Merger
Sub") and FISHER SCIENTIFIC INTERNATIONAL INC., a Delaware corporation
("Fisher").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of Thermo Electron, Merger
Sub and Fisher have deemed it advisable and fair to and in the best interests of
their respective corporations and their respective stockholders, that Thermo
Electron and Fisher engage in a business combination in order to advance their
respective long-term strategic business interests; and
WHEREAS, in furtherance thereof, the respective Boards of Directors of
Thermo Electron, Merger Sub and Fisher have approved this Agreement and the
merger of Merger Sub with and into Fisher with Fisher continuing as the
surviving corporation (the "Merger"), upon the terms and subject to the
conditions set forth in this Agreement and in accordance with the provisions of
the Delaware General Corporation Act (the "DGCL"); and
WHEREAS, the Board of Directors of Fisher has determined that this
Agreement and the transactions contemplated hereby are in the best interests of
Fisher and its stockholders and has determined to recommend to its stockholders
approval and adoption of this Agreement and the Merger (the "Fisher Stockholder
Approval"); and
WHEREAS, the Board of Directors of Thermo Electron has approved, and
has determined to recommend to its stockholders (together with the
recommendation of the Board of Directors of Fisher, the "Recommendations")
approval of, the issuance of shares of Thermo Electron Common Stock (as defined
in Section 2.1(a)) and the Charter Amendment (as defined in Section 3.2(c)(i))
in connection with the Merger (the "Thermo Electron Stockholder Approval"); and
WHEREAS, Thermo Electron, as the sole stockholder of Merger Sub, has
approved this Agreement and the Merger; and
WHEREAS, for United States federal income tax purposes, it is intended
that the Merger shall qualify as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and this
Agreement is intended to be, and is hereby adopted as, a plan of reorganization
within the meaning of Sections 354 and 361 of the Code; and
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
-1-
ARTICLE I
THE MERGER
SECTION 1.1. The Merger. Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with the DGCL, at the Effective
Time (as defined in Section 1.3), Merger Sub shall be merged with and into
Fisher, the separate corporate existence of Merger Sub shall cease and Fisher
shall continue as the surviving corporation in the Merger (the "Surviving
Corporation") and shall succeed to and assume all the property, rights,
privileges, powers and franchises of Merger Sub in accordance with the DGCL.
SECTION 1.2. Closing. The closing of the Merger (the "Closing") shall
take place at 10:00 a.m., New York time, on a date to be specified by the
parties, which shall be no later than the second business day after satisfaction
or waiver of all of the conditions set forth in Article VI (other than delivery
of items to be delivered at the Closing and other than those conditions that by
their nature are to be satisfied at the Closing, it being understood that the
occurrence of the Closing shall remain subject to the delivery of such items and
the satisfaction or waiver of such conditions at the Closing) at the offices of
Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York 10019,
unless another time, date or place is agreed to in writing by the parties
hereto. The date on which the Closing occurs is referred to herein as the
"Closing Date."
SECTION 1.3. Effective Time. Subject to the terms and conditions of
this Agreement, as soon as practicable on the Closing Date, the parties shall
cause the Merger to be consummated by filing a certificate of merger in such
form as required by, and executed in accordance with, the relevant provisions of
the DGCL (the "Certificate of Merger") with the Secretary of State of the State
of Delaware and shall make all other filings or recordings required under the
DGCL. The Merger shall become effective at such time as the Certificate of
Merger is duly filed with the Secretary of State of the State of Delaware, or at
such subsequent date or time as Thermo Electron and Fisher shall agree and
specify in the Certificate of Merger, which date shall be not more than 90 days
after the date the Certificate of Merger is received for filing. The time at
which the Merger becomes effective is referred to herein as the "Effective
Time."
SECTION 1.4. Effects of the Merger. At the Effective Time, the Merger
shall have the effects set forth in this Agreement and in the applicable
provisions of the DGCL.
SECTION 1.5. Organizational Documents of the Surviving Corporation. The
Fisher Charter (as defined in Section 3.1(a)(ii)), as in effect immediately
prior to the Effective Time, shall thereafter be the certificate of
incorporation of the Surviving Corporation, until amended in accordance with
Applicable Laws (as defined in Section 3.1(g)(ii)) and as provided in such
certificate of incorporation. The Fisher By-Laws (as defined in Section
3.1(a)(ii)), as in effect immediately prior to the Effective Time, shall
thereafter be the bylaws of the Surviving Corporation, until amended in
accordance with Applicable Laws and as provided in such bylaws.
SECTION 1.6. Directors and Officers of the Surviving Corporation. The
directors of Merger Sub shall, from and after the Effective Time, become the
initial directors of the Surviving Corporation until their successors shall have
been duly elected, appointed or
-2-
qualified or until their earlier death, resignation or removal in accordance
with the certificate of incorporation and bylaws of the Surviving Corporation
and Applicable Laws. The officers of Merger Sub shall, from and after the
Effective Time, become the initial officers of the Surviving Corporation until
their successors shall have been duly elected, appointed or qualified or until
their earlier death, resignation or removal in accordance with the certificate
of incorporation and the bylaws of the Surviving Corporation.
SECTION 1.7. Governance. Subject to the Thermo Electron Stockholder
Approval, the Thermo Electron Charter (as defined in Section 3.2(a)(ii)) as in
effect immediately prior to the Effective Time, as amended pursuant to the
Charter Amendment, shall thereafter be the certificate of incorporation of
Thermo Electron, until amended in accordance with Applicable Laws and as
provided in such certificate of incorporation. Prior to the Effective Time,
Thermo Electron shall take all actions necessary to adopt the amendment to the
Thermo Electron By-Laws (as defined in Section 3.2(a)(ii)), provided for in
Exhibit 1.7(a) hereof, and to effect the requirements and adopt the resolutions
referenced therein.
(a) On or prior to the Effective Time, the Board of Directors of
Thermo Electron shall cause the number of directors that will comprise the full
Board of Directors of Thermo Electron at the Effective Time to be eight. The
members of the Board of Directors and the composition of the committees of the
Board of Directors of Thermo Electron (as specified in Exhibit 1.8) at the
Effective Time shall be as provided in Section 1.8 of this Agreement.
(b) In accordance with, and to the extent provided in, the Thermo
Electron By-Laws (as amended as provided in Exhibit 1.7(a)), (i) effective as of
the Effective Time, Mr. Dekkers shall continue to serve as President and Chief
Executive Officer of Thermo Electron, and (ii) Mr. Meister shall become
non-executive Chairman of the Board of Directors of Thermo Electron.
(c) The headquarters of Thermo Electron will be located in
Waltham, Massachusetts; provided that, for at least three years after the
Effective Time, Thermo Electron shall maintain the current offices of Fisher in
its current facility in Hampton, New Hampshire.
(d) Immediately following the Effective Time, as set forth in the
Charter Amendment, Thermo Electron will change its name to Thermo Fisher
Scientific Inc.
SECTION 1.8. Directors of Thermo Electron at the Effective Time. As of
the Effective Time, and continuing for a period of at least three years
following the Effective Time: (i) the ratio of Continuing Thermo Electron
Directors to Continuing Fisher Directors (each as defined in this Section 1.8)
serving on the Board of Directors of Thermo Electron shall be maintained at
five-to-three; (ii) all vacancies on the Board of Directors of Thermo Electron
created by the cessation of service of a Continuing Thermo Electron Director for
any reason shall be filled by a nominee proposed to the Nominating and Corporate
Governance Committee of the Board of Directors of Thermo Electron by a majority
of the remaining Continuing Thermo Electron Directors; and (iii) all vacancies
on the Board of Directors of Thermo Electron created by the cessation of service
of a Continuing Fisher Director for any reason shall be filled by a nominee
proposed to the Nominating and Corporate Governance Committee of the Board of
-3-
Directors of Thermo Electron by a majority of the remaining Continuing Fisher
Directors. The terms "Continuing Thermo Electron Directors" and "Continuing
Fisher Directors" shall for purposes of this Section 1.8 mean, respectively, the
directors of Thermo Electron or Fisher, as the case may be, who were selected to
be directors of Thermo Electron as of the Effective Time pursuant to Section
1.7(a), and any other directors of Thermo Electron who take office after the
Effective Time who are nominated, or proposed to the Nominating and Corporate
Governance Committee of the Board of Directors of Thermo Electron, by a majority
of the Continuing Thermo Electron Directors or the Continuing Fisher Directors,
as the case may be. Until the third anniversary of the Effective Time, any
amendments to the Thermo Electron By-Law provisions relating to the foregoing
terms of this Section 1.8 shall require the affirmative vote of at least 75% of
the full Board of Directors of Thermo Electron.
ARTICLE II
EFFECTS OF THE MERGER; EXCHANGE OF CERTIFICATES
SECTION 2.1. Effect on Capital Stock. Subject to the terms and
conditions of this Agreement, at the Effective Time, by virtue of the Merger and
without any action on the part of Thermo Electron, Merger Sub, Fisher or the
holders of any shares of common stock, par value $0.01 per share, of Fisher
("Fisher Common Stock"):
(a) Conversion of Fisher Common Stock. Subject to Sections 2.1(f)
and 2.1(g), each share of Fisher Common Stock issued and outstanding immediately
prior to the Effective Time, other than any shares of Fisher Common Stock to be
canceled pursuant to Section 2.1(c), shall be automatically converted into and
become the right to receive 2.0 (the "Exchange Ratio") fully paid and
nonassessable shares of common stock, par value $1.00 per share ("Thermo
Electron Common Stock"), of Thermo Electron (the "Merger Consideration"). As a
result of the Merger, at the Effective Time, each holder of a Certificate (as
defined in Section 2.2(b)) shall cease to have any rights with respect thereto,
except the right to receive the Merger Consideration payable in respect of the
shares of Fisher Common Stock represented by such Certificate immediately prior
to the Effective Time, any cash in lieu of fractional shares payable pursuant to
Section 2.1(f) and any dividends or other distributions payable pursuant to
Section 2.2(c), all to be issued or paid, without interest, in consideration
therefor upon the surrender of such Certificate in accordance with Section
2.2(b) (or, in the case of a lost, stolen or destroyed Certificate, Section
2.2(i)).
(b) Capital Stock of Merger Sub. Each share of common stock, par
value $0.01 per share, of Merger Sub issued and outstanding immediately prior to
the Effective Time shall be converted into one fully paid and nonassessable
share of common stock, par value $0.01 per share, of the Surviving Corporation.
(c) Cancellation of Shares. Each share of Fisher Common Stock
owned by Thermo Electron, Merger Sub or Fisher immediately prior to the
Effective Time shall automatically be extinguished without any conversion, and
no consideration shall be delivered in respect thereof.
-4-
(d) Fisher Options, Stock Unit Awards and Employee Stock Purchase
Plans. At the Effective Time, (i) subject to and in accordance with Section
5.11(a), all options to purchase Fisher Common Stock (each, a "Fisher Option")
and all restricted stock units and rights to receive shares of Fisher Common
Stock or an amount in cash measured by the value of a number of shares of Fisher
Common Stock (each, a "Fisher Stock Unit Awards"), in each case, issued and
outstanding at the Effective Time under a Fisher Stock Plan or a Fisher Deferred
Compensation Plan (each as defined in Section 3.1(b)(i)), shall be assumed by
Thermo Electron and (ii) all rights outstanding under Fisher's Employee Stock
Purchase Plan, as approved by the Fisher stockholders on May 5, 2006 (the
"Fisher Purchase Plan"), shall be treated as set forth in Section 5.11(b).
(e) Conversion of Debt. The Fisher Convertible Debentures (as
defined in Section 3.1(b)(i)) shall remain outstanding as debentures of Fisher,
however in lieu of being convertible into shares of Fisher Common Stock,
following the Effective Time, the Fisher Convertible Debentures shall become
convertible into Thermo Electron Common Stock at a conversion ratio equal to the
conversion ratio in effect immediately prior to the Effective Time multiplied by
the Exchange Ratio and Thermo Electron shall agree to guarantee the payment of,
or become a co-obligor on, said debentures.
(f) Fractional Shares. No fraction of a share of Thermo Electron
Common Stock will be issued by virtue of the Merger, but in lieu thereof each
holder of shares of Fisher Common Stock who would otherwise be entitled to a
fraction of a share of Thermo Electron Common Stock (after aggregating all
shares of Thermo Electron Common Stock that otherwise would be received by such
holder) shall, upon surrender of such holder's Certificate or Certificates,
receive from Thermo Electron an amount of cash (rounded to the nearest whole
cent), without interest, equal to the product of: (i) the fractional share
interest (after aggregating all shares of Thermo Electron Common Stock that
would otherwise be received by such holder) which such holder would otherwise
receive, multiplied by (ii) the closing price of one share of Thermo Electron
Common Stock on the New York Stock Exchange ("NYSE") Composite Transactions Tape
ending on the trading day one day prior to the Effective Time.
(g) Adjustments to Exchange Ratio. The Exchange Ratio and the
Merger Consideration shall be adjusted to reflect fully the appropriate effect
of any stock split, split-up, reverse stock split, stock dividend (including any
dividend or distribution of securities convertible into Thermo Electron Common
Stock or Fisher Common Stock), reorganization, recapitalization,
reclassification or other like change with respect to Thermo Electron Common
Stock or Fisher Common Stock having a record date occurring on or after the date
hereof and prior to the Effective Time.
SECTION 2.2. Exchange of Shares and Certificates.
(a) Exchange Agent. At or prior to the Effective Time, Thermo
Electron shall engage an institution reasonably satisfactory to Fisher (and
Thermo Electron's transfer agent shall be deemed satisfactory to Fisher) to act
as exchange agent in connection with the Merger (the "Exchange Agent"), pursuant
to an agreement reasonably satisfactory to Fisher. At the Effective Time, Thermo
Electron shall deposit with the Exchange Agent, in trust for the benefit of the
holders of shares of Fisher Common Stock immediately prior to the Effective
-5-
Time, certificates representing the shares of Thermo Electron Common Stock
issuable pursuant to Section 2.1(a). In addition, Thermo Electron shall make
available by depositing with the Exchange Agent, as necessary from time to time
after the Effective Time, cash in an amount sufficient to make the payments in
lieu of fractional shares pursuant to Section 2.1(f) and any dividends or
distributions to which holders of shares of Fisher Common Stock may be entitled
pursuant to Section 2.2(c). All cash and certificates representing shares of
Thermo Electron Common Stock deposited with the Exchange Agent shall hereinafter
be referred to as the "Exchange Fund."
(b) Exchange Procedures. Promptly after the Effective Time, and
in any event within 10 business days after the Effective Time, Thermo Electron
shall cause the Exchange Agent to mail to each holder of record of a certificate
or certificates which immediately prior to the Effective Time represented
outstanding shares of Fisher Common Stock (the "Certificates"), which at the
Effective Time were converted into the right to receive the Merger Consideration
pursuant to Section 2.1 hereof, (i) a letter of transmittal (which shall specify
that delivery shall be effected, and that risk of loss and title to the
Certificates shall pass only upon delivery of the Certificates to the Exchange
Agent and which shall be in form and substance reasonably satisfactory to Thermo
Electron and Fisher) and (ii) instructions for use in effecting the surrender of
the Certificates in exchange for certificates representing whole shares of
Thermo Electron Common Stock, cash in lieu of any fractional shares pursuant to
Section 2.1(f) and any dividends or other distributions payable pursuant to
Section 2.2(c). Upon surrender of Certificates for cancellation to the Exchange
Agent, together with such letter of transmittal, duly completed and validly
executed in accordance with the instructions thereto, and such other documents
as may reasonably be required by the Exchange Agent, the holder of such
Certificates shall be entitled to receive in exchange therefor a certificate
representing that number of whole shares of Thermo Electron Common Stock (after
taking into account all Certificates surrendered by such holder) to which such
holder is entitled pursuant to Section 2.1 (which shall be in uncertificated
book entry form unless a physical certificate is requested), payment by cash or
check in lieu of fractional shares which such holder is entitled to receive
pursuant to Section 2.1(f) and any dividends or distributions payable pursuant
to Section 2.2(c), and the Certificates so surrendered shall forthwith be
canceled. In the event of a transfer of ownership of shares of Fisher Common
Stock which is not registered in the transfer records of Fisher, a certificate
representing the proper number of shares of Thermo Electron Common Stock may be
issued to a Person (as defined in Section 8.3(l)) other than the Person in whose
name the Certificate so surrendered is registered, if such Certificate shall be
properly endorsed or otherwise be in proper form for transfer and the Person
requesting such issuance shall pay any transfer or other Taxes (as defined in
Section 3.1(j)(xi)) required by reason of the issuance of shares of Thermo
Electron Common Stock to a Person other than the registered holder of such
Certificate or establish to the reasonable satisfaction of Thermo Electron that
such Tax has been paid or is not applicable. Until surrendered as contemplated
by this Section 2.2(b), each Certificate shall be deemed at any time after the
Effective Time to represent only the right to receive the Merger Consideration
(and any amounts to be paid pursuant to Section 2.1(f) or Section 2.2(c)) upon
such surrender. No interest shall be paid or shall accrue on any amount payable
pursuant to Section 2.1(f) or Section 2.2(c).
(c) Distributions with Respect to Unexchanged Shares. No
dividends or other distributions with respect to shares of Thermo Electron
Common Stock with a record
-6-
date after the Effective Time shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of Thermo Electron Common Stock
represented thereby, and no cash payment in lieu of fractional shares shall be
paid to any such holder pursuant to Section 2.1(f) hereof, until such
Certificate has been surrendered in accordance with this Article II. Subject to
Applicable Laws, following surrender of any such Certificate, there shall be
paid to the recordholder thereof, without interest, (i) promptly after such
surrender, the number of whole shares of Thermo Electron Common Stock issuable
in exchange therefor pursuant to this Article II, together with any cash payable
in lieu of a fractional share of Thermo Electron Common Stock to which such
holder is entitled pursuant to Section 2.1(f) and the amount of dividends or
other distributions with a record date after the Effective Time theretofore paid
with respect to such whole shares of Thermo Electron Common Stock and (ii) at
the appropriate payment date, the amount of dividends or other distributions
with a record date after the Effective Time and a payment date subsequent to
such surrender payable with respect to such whole shares of Thermo Electron
Common Stock.
(d) No Further Ownership Rights in Fisher Common Stock. All
shares of Thermo Electron Common Stock issued upon the surrender for exchange
of Certificates in accordance with the terms of this Article II and any
cash paid pursuant to Section 2.1(f) or Section 2.2(c) shall be deemed to have
been issued (or paid) in full satisfaction of all rights pertaining to the
shares of Fisher Common Stock previously represented by such Certificates. After
the Effective Time, the stock transfer books of Fisher shall be closed and there
shall be no further registration of transfers on the stock transfer books of the
Surviving Corporation of the shares of Fisher Common Stock which were
outstanding immediately prior to the Effective Time. If, after the Effective
Time, Certificates are presented to the Surviving Corporation or the Exchange
Agent for any reason, they shall be canceled and exchanged as provided in this
Article II.
(e) Termination of Exchange Fund. Any portion of the Exchange
Fund which remains undistributed to the holders of Certificates one year after
the Effective Time shall be delivered to Thermo Electron, upon demand, and any
holders of Certificates who have not theretofore complied with this Article II
shall thereafter look only to Thermo Electron for payment of their claim for the
Merger Consideration, any cash in lieu of fractional shares of Thermo Electron
Common Stock pursuant to Section 2.1(f) and any dividends or distributions
pursuant to Section 2.2(c).
(f) No Liability. None of Thermo Electron, Merger Sub, Fisher or
the Exchange Agent or any of their respective directors, officers, employees and
agents shall be liable to any Person in respect of any shares of Thermo Electron
Common Stock (or dividends or distributions with respect thereto) or cash from
the Exchange Fund delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law. If any Certificate shall not have
been surrendered prior to seven years after the Effective Time, or immediately
prior to such earlier date on which any shares of Thermo Electron Common Stock,
any cash in lieu of fractional shares of Thermo Electron Common Stock or any
dividends or distributions with respect to Thermo Electron Common Stock issuable
in respect of such Certificate would otherwise escheat to or become the property
of any Governmental Entity (as defined in Section 3.1(c)(v)), any such shares,
cash, dividends or distributions in respect of such Certificate shall, to
-7-
the extent permitted by Applicable Laws, become the property of the Surviving
Corporation, free and clear of all claims or interests of any Person previously
entitled thereto.
(g) Investment of Exchange Fund. The Exchange Agent shall invest
any cash included in the Exchange Fund as directed by Thermo Electron on a daily
basis, provided, that no such investment or loss thereon shall affect the
amounts payable to former stockholders of Fisher after the Effective Time
pursuant to this Article II. Any interest and other income resulting from such
investment shall become a part of the Exchange Fund, and any amounts in excess
of the amounts payable pursuant to this Article II shall promptly be paid to
Thermo Electron.
(h) Withholding Rights. Thermo Electron and the Exchange Agent
shall be entitled to deduct and withhold from any consideration payable pursuant
to this Agreement to any Person who was a holder of Fisher Common Stock
immediately prior to the Effective Time such amounts as Thermo Electron or the
Exchange Agent may be required to deduct and withhold with respect to the making
of such payment under the Code or any other provision of federal, state, local
or foreign Tax law. To the extent that amounts are so withheld by Thermo
Electron or the Exchange Agent, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the Person to whom such
consideration would otherwise have been paid.
(i) Lost, Stolen or Destroyed Certificates. In the event any
Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall
issue in exchange for such lost, stolen or destroyed Certificates, upon the
making of an affidavit of that fact by the holder thereof, such shares of Thermo
Electron Common Stock as may be required pursuant to Section 2.1(a), cash for
fractional shares pursuant to Section 2.1(f) and any dividends or distributions
payable pursuant to Section 2.2(c); provided, however, that Thermo Electron may,
in its discretion and as a condition precedent to the issuance thereof, require
the owner of such lost, stolen or destroyed Certificates to deliver an agreement
of indemnification in form reasonably satisfactory to Thermo Electron, or a bond
in such sum as Thermo Electron may reasonably direct as indemnity, against any
claim that may be made against Thermo Electron or the Exchange Agent in respect
of the Certificates alleged to have been lost, stolen or destroyed.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of Fisher. Except as set
forth in the disclosure schedule dated as of the date of this Agreement and
executed and delivered by Fisher to Thermo Electron concurrently with or prior
to the execution and delivery by Fisher of this Agreement (the "Fisher
Disclosure Schedule"), Fisher represents and warrants to Thermo Electron and
Merger Sub as set forth in this Section 3.1. Each disclosure set forth in the
Fisher Disclosure Schedule, and any other information included in the Fisher
Disclosure Schedule, is identified by reference to, or has been grouped under a
heading referring to, a specific individual subsection of this Agreement and
shall be deemed to be disclosed solely for purposes of, and shall qualify and be
treated as an exception to, such subsection, except to the extent that
disclosure in one subsection of the Fisher Disclosure Schedule is specifically
referred to in
-8-
another subsection of the Fisher Disclosure Schedule by appropriate
cross-reference and except to the extent that the relevance of a disclosure in
one subsection of the Fisher Disclosure Schedule to another subsection of the
Fisher Disclosure Schedule is reasonably apparent. The parties hereby agree that
no reference to or disclosure of any item or other matter in the Fisher
Disclosure Schedule shall be construed as an admission or indication that (1)
such item or other matter is material, (2) such item or other matter is required
to be referred to or disclosed in the Fisher Disclosure Schedule or (3) any
breach or violation of Applicable Laws or any Contract (as defined in Section
8.3(c)) exists or has actually occurred.
(a) Organization, Standing and Corporate Power; Charter
Documents; Subsidiaries.
(i) Organization, Standing and Corporate Power. Fisher and
each of its Subsidiaries (as defined in Section 8.3(m)) is a corporation
or other legal entity duly organized, validly existing and in good
standing (with respect to jurisdictions which recognize such concept)
under the laws of the jurisdiction in which it is incorporated or
otherwise organized and has the requisite corporate (or similar) power and
authority and all necessary government approvals to own, lease and operate
its properties and to carry on its business as currently conducted, except
for those jurisdictions in which the failure to have such power, authority
or government approvals and to be so organized, existing or in good
standing would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect (as defined in Section 8.3(i))
on Fisher and its Subsidiaries, taken as a whole. Each of Fisher and each
of its Subsidiaries is duly qualified or licensed to do business and is in
good standing (with respect to jurisdictions which recognize such concept)
in each jurisdiction in which the nature or conduct of its business or the
ownership, leasing or operation of its properties makes such
qualification, licensing or good standing necessary, except for those
jurisdictions where the failure to be so qualified or licensed or to be in
good standing would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on Fisher and its Subsidiaries,
taken as a whole.
(ii) Charter Documents. Fisher has delivered or made
available to Thermo Electron prior to the execution of this Agreement
complete and correct copies of (A) the Amended and Restated Certificate of
Incorporation of Fisher (including any certificates of designation), as
amended and currently in effect (the "Fisher Charter"), and the By-Laws of
Fisher, as amended and currently in effect (the "Fisher By-Laws," and,
together with the Fisher Charter, the "Fisher Organizational Documents")
and (B) the articles or certificate of incorporation and By-Laws or like
organizational documents of each of the Fisher Material Subsidiaries (as
defined in Section 3.1(a)(iii)), as amended and currently in effect
(collectively, the "Fisher Subsidiary Organizational Documents"), and each
such instrument is in full force and effect. Fisher is not in material
violation of the Fisher Organizational Documents and no Fisher Material
Subsidiary is in material violation of its Fisher Subsidiary
Organizational Documents.
(iii) Subsidiaries. Section 3.1(a)(iii) of the Fisher
Disclosure Schedule lists all the Subsidiaries of Fisher which, as of the
date of this Agreement, have annual gross revenues in excess of
$200,000,000 (the "Fisher Material Subsidiaries").
-9-
Except as set forth in Section 3.1(a)(iii) of the Fisher Disclosure
Schedule, all the outstanding shares of capital stock of, or other equity
interests in, each Fisher Material Subsidiary have been validly issued and
are fully paid and nonassessable and are owned directly or indirectly by
Fisher, free and clear of all mortgages, pledges, claims, restrictions,
infringements, liens, charges, encumbrances and security interests and
claims of any kind or nature whatsoever (collectively, "Liens") and free
of any other restriction (including preemptive rights and any restriction
on the right to vote, sell or otherwise dispose of such capital stock or
other ownership interests).
(b) Capital Structure.
(i) The authorized capital stock of Fisher consists of
500,000,000 shares of Fisher Common Stock and 15,000,000 shares of
preferred stock, par value $0.01 per share ("Fisher Preferred Stock"). At
the close of business on May 1, 2006, (A) 124,403,412 shares of Fisher
Common Stock were issued and outstanding; (B) 254,975 shares of Fisher
Common Stock were held by Fisher in its treasury; (C) no shares of Fisher
Preferred Stock were issued and outstanding; (D) warrants to purchase
1,653,585 shares of Fisher Common Stock were issued and outstanding; (E)
16,255,956 shares of Fisher Common Stock were reserved for issuance upon
conversion of Fisher's (1) 2.50% Convertible Senior Notes due 2023, (2)
Floating Rate Convertible Senior Debentures due 2033 and (3) 3.25%
Convertible Senior Subordinated Notes due 2024 (together, the "Fisher
Convertible Debentures"); (F) 10,530,422 shares of Fisher Common Stock
were reserved for issuance in respect of outstanding Fisher Options
pursuant to the Fisher stock plans listed in Section 3.1(b)(i) of the
Fisher Disclosure Schedule (which list includes the total aggregate number
of options authorized for issuance under such plans) (the "Fisher Stock
Plans"); and (G) 989,130 shares of Fisher Common Stock were reserved for
issuance in respect of outstanding Fisher Stock Unit Awards pursuant to
the Fisher Stock Plans and the Fisher deferred compensation plans listed
in Section 3.1(b)(i) of the Fisher Disclosure Schedule (the "Fisher
Deferred Compensation Plans"), complete and correct copies of which, in
each case as amended, have been filed as exhibits to the Fisher SEC
Documents (as defined in Section 3.1(d)(i)) prior to the date of this
Agreement or made available to Thermo Electron. Each outstanding share of
capital stock of Fisher is duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights.
(ii) All shares of Fisher Common Stock subject to issuance
under the Fisher Stock Plans, the Fisher Deferred Compensation Plans and
the Fisher Purchase Plan, upon issuance on the terms and conditions
specified in the instruments pursuant to which they are issuable, will be
duly authorized, validly issued, fully paid and nonassessable and free of
preemptive rights.
(iii) No bonds, debentures, notes or other evidences of
indebtedness having the right to vote on any matters on which stockholders
of Fisher may vote ("Voting Debt") are issued or outstanding as of the
date hereof.
(iv) As of May 1, 2006, there are no securities, options,
warrants, calls, rights, commitments, agreements, arrangements or
undertakings of any
-10-
kind to which Fisher or any of its Subsidiaries is a party or by which any
of them is bound obligating Fisher or any of its Subsidiaries to issue,
deliver or sell, or cause to be issued, delivered or sold, additional
shares of capital stock, Voting Debt or other voting securities of Fisher
or any of its Subsidiaries, or obligating Fisher or any of its
Subsidiaries to issue, grant, extend or enter into any such security,
option, warrant, call, right, commitment, agreement, arrangement or
undertaking. All outstanding shares of Fisher Common Stock, all
outstanding Fisher Options and Fisher Stock Unit Awards and all
outstanding shares of capital stock of each Subsidiary of Fisher have been
issued and granted in compliance in all material respects with (A) all
applicable securities laws and all other Applicable Laws and (B) all
requirements set forth in applicable material Contracts.
(v) Since December 31, 2005, and through the date hereof,
other than (A) issuances of Fisher Common Stock pursuant to the exercise
of Fisher Options and the settlement of Fisher Stock Unit Awards granted
under Fisher Stock Plans or Fisher Deferred Compensation Plans, (B)
repurchases of Fisher Common Stock from employees of Fisher following
their termination pursuant to the terms of their pre-existing stock option
or purchase agreements, (C) issuances of Fisher Common Stock (consisting
of newly-issued shares or shares in treasury) as contributions of Fisher
Common Stock to defined contribution plans sponsored by Fisher and (D)
grants of Fisher Options and Fisher Stock Unit Awards under Fisher Stock
Plans and Fisher Deferred Compensation Awards, there has been no increase
in (1) the outstanding capital stock of Fisher, (2) the number of Fisher
Options and Fisher Stock Unit Awards outstanding or (3) the number of
other options, warrants or other rights to purchase Fisher capital stock.
(vi) Neither Fisher nor any of its Subsidiaries is a party to
any currently effective agreement (A) restricting the purchase or transfer
of, (B) relating to the voting of, (C) requiring the repurchase,
redemption or disposition of, or containing any right of first refusal
with respect to, (D) requiring registration of or (E) granting any
preemptive or antidilutive rights with respect to any capital stock of
Fisher or any of its Subsidiaries or any securities of the type referred
to in Section 3.1(b)(iv) hereof.
(vii) Other than in Subsidiaries of Fisher, as of the date
hereof, neither Fisher nor its Subsidiaries directly or indirectly
beneficially owns any securities or other beneficial ownership interests
in any other entity except for non-controlling investments in entities
with an individual book value of less than $5,000,000 and which are not
individually or in the aggregate material to Fisher and its Subsidiaries,
taken as a whole. There are no outstanding contractual obligations of
Fisher or any of its Subsidiaries to make any loan to, or any equity or
other investment (in the form of a capital contribution or otherwise) in,
any Subsidiary of Fisher or any other Person, other than guarantees by
Fisher of any indebtedness or other obligations of any wholly-owned
Subsidiary of Fisher and other than loans made in the ordinary course
consistent with past practice to employees of Fisher and its Subsidiaries.
(viii) Neither Fisher nor any of its Subsidiaries owns any
shares of capital stock of Thermo Electron or any of its Subsidiaries.
-11-
(c) Authority; Board Approval; Voting Requirements; No Conflict;
Required Filings and Consents.
(i) Authority. Fisher has all requisite corporate power and
authority to enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Fisher, and the consummation
by Fisher of the transactions contemplated hereby, have been duly and
validly authorized by all necessary corporate action on the part of
Fisher, and no other corporate proceedings on the part of Fisher and no
stockholder votes are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby, other than, with respect
to approval of this Agreement and the Merger, the Fisher Stockholder
Approval (as defined in Section 3.1(c)(iii)). This Agreement has been duly
executed and delivered by Fisher. Assuming the due authorization,
execution and delivery of this Agreement by Thermo Electron and Merger
Sub, this Agreement constitutes the legal, valid and binding obligation of
Fisher enforceable against Fisher in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting the rights and remedies of creditors
generally and to general principles of equity (regardless of whether
considered in a proceeding in equity or at law).
(ii) Board Approval. The Board of Directors of Fisher has (A)
determined that this Agreement and the Merger are advisable and fair to
and in the best interests of Fisher and its stockholders, (B) duly
approved and adopted this Agreement, the Merger and the other transactions
contemplated hereby, which adoption has not been rescinded or modified,
(C) resolved to recommend this Agreement and the Merger to its
stockholders for approval, and (D) subject to Section 5.1(b) directed that
this Agreement, the Merger and the transactions contemplated thereby be
submitted to Fisher's stockholders for consideration and adoption at a
duly held meeting of such stockholders in accordance with this Agreement.
(iii) Voting Requirements. The affirmative vote of holders of
a majority of the outstanding shares of Fisher Common Stock entitled to
vote is the only vote of the holders of any class or series of Fisher
capital stock necessary to approve and adopt this Agreement, approve the
Merger and consummate the Merger and the other transactions contemplated
hereby.
(iv) No Conflict. Except as set forth in Section 3.1(c)(iv)
of the Fisher Disclosure Schedule, the execution and delivery of this
Agreement by Fisher do not, and the consummation by Fisher of the
transactions contemplated hereby and compliance by Fisher with the
provisions of this Agreement will not, conflict with, result in any
violation or breach of or default (with or without notice or lapse of
time, or both) under, require any consent, waiver or approval under, give
rise to any right of termination or cancellation or acceleration of any
right or obligation or loss of a benefit under, or result in the creation
of any Lien upon any of the properties or assets of Fisher or any of its
Subsidiaries or any restriction on the conduct of Fisher's business or
operations under, (A) the Fisher Organizational Documents or the Fisher
Subsidiary Organizational Documents, (B) any Contract to which Fisher or
any Fisher Subsidiary is a party or
-12-
Fisher Permit (as defined in Section 3.1(g)(i)) or (C) subject to the
governmental filings and other matters referred to in Section 3.1(c)(v),
any judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Fisher or any of its Subsidiaries or their respective
properties or assets, other than, in the case of clauses (B) and (C), any
such conflicts, violations, defaults, rights, losses, restrictions or
Liens, or failure to obtain consents, waivers or approvals, which,
individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect on Fisher and its Subsidiaries, taken as a
whole.
(v) Required Filings or Consents. No consent, approval, order
or authorization or permit of, action by or in respect of, registration,
declaration or filing with, or notification to, any federal, state, local,
foreign or supranational government, any court, administrative, regulatory
or other governmental agency, commission or authority or any
non-governmental self-regulatory agency, commission or authority (a
"Governmental Entity") or any other Person is required to be made,
obtained, performed or given to or with respect to Fisher or any of its
Subsidiaries in connection with the execution and delivery of this
Agreement by Fisher or the consummation by Fisher of the transactions
contemplated hereby, except for:
(A) the filing of a pre-merger notification and report
form by Fisher under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended (the "HSR Act"), all required notifications
and filings under Council Regulation (EC) 139/2004 of the European
Community, as amended (the "ECMR") and any other applicable filings
or notifications under the antitrust, competition or similar laws of
any foreign jurisdiction;
(B) the filing with the Securities and Exchange
Commission (the "SEC") of:
(1) a proxy statement relating to the Fisher
Stockholders' Meeting (as defined in Section 5.1(b)) (such proxy
statement, together with the proxy statement relating to the
Thermo Electron Stockholders' Meeting (as defined in Section
5.1(b), in each case as amended or supplemented from time to
time, the "Joint Proxy Statement");
(2) such reports and filings under Section 13(a),
13(d), 14(a), 15(d) or 16(a) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the rules and
regulations thereunder, as may be required in connection with
this Agreement and the transactions contemplated hereby;
(C) the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware and appropriate
documents with the NYSE and the relevant authorities of other states
in which Fisher is qualified to do business and such filings as may
be necessary in accordance with state securities or other "blue sky"
laws;
-13-
(D) the Fisher Stockholder Approval;
(E) the consents, approvals, orders or authorizations set
forth in Section 3.1(c)(v)(E) of the Fisher Disclosure Schedule; and
(F) other such consents, approvals, orders or
authorizations, the failure of which to be made or obtained,
individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect on Fisher and its Subsidiaries,
taken as a whole.
(d) SEC Documents; Financial Statements.
(i) Fisher has filed with the SEC all registration
statements, prospectuses, reports, schedules, forms, statements,
certifications and other documents (including exhibits and all other
information incorporated by reference therein) presently required to be so
filed by Fisher since January 1, 2004 (excluding the Joint Proxy
Statement, the "Fisher SEC Documents"). As of their respective dates, the
Fisher SEC Documents complied in all material respects with the
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), or the Exchange Act, as the case may be, to the extent in effect,
the Sarbanes-Oxley Act of 2002 ("SOX") and the rules and regulations of
the SEC promulgated thereunder applicable to such Fisher SEC Documents,
and none of the Fisher SEC Documents, when filed, contained any untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading,
except to the extent corrected by a subsequently filed Fisher SEC Document
filed with the SEC prior to the date hereof. No Subsidiary of Fisher is
subject to the periodic reporting requirements of the Exchange Act.
(ii) Each of the principal executive officer of Fisher and
the principal financial officer of Fisher (or each former principal
executive officer of Fisher and each former principal financial officer of
Fisher, as applicable) has made all certifications required by Rule 13a-14
or 15d-14 under the Exchange Act or Sections 302 and 906 of SOX and the
rules and regulations of the SEC promulgated thereunder with respect to
the Fisher SEC Documents. For purposes of the preceding sentence,
"principal executive officer" and "principal financial officer" shall have
the meanings given to such terms in SOX. Neither Fisher nor any of its
Subsidiaries has outstanding, or has arranged any outstanding, "extensions
of credit" to directors or executive officers within the meaning of
Section 402 of SOX.
(iii) The financial statements of Fisher included in the
Fisher SEC Documents, including each Fisher SEC Document filed after the
date hereof until the Effective Time, comply, as of their respective dates
of filing with the SEC, in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
with respect thereto, have been prepared in accordance with United States
generally accepted accounting principles ("GAAP") (except, in the case of
unaudited statements, as permitted by Form 10-Q or 8-K or other applicable
rules of the SEC) applied on a consistent basis during the periods
involved (except as may be
-14-
indicated in the notes thereto) and fairly present the consolidated
financial position of Fisher and its consolidated Subsidiaries as of the
dates thereof and the consolidated results of their operations and cash
flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments which are not material).
The financial books and records of Fisher and its Subsidiaries, taken as a
whole, are true and correct in all material respects.
(iv) Except as reflected or reserved against in the balance
sheet of Fisher, dated December 31, 2005, included in the Form 10-K filed
by Fisher with the SEC on February 21, 2006 (including the notes thereto,
the "Fisher Balance Sheet") and except as set forth in Section 3.1(d)(iv)
of the Fisher Disclosure Schedule, neither Fisher nor any of its
Subsidiaries has any liabilities or obligations of any nature (whether
absolute, accrued, known or unknown, contingent or otherwise) nor, to the
Knowledge (as defined in Section 8.3(h)) of Fisher, does any basis exist
therefor, other than liabilities or obligations that (A) were incurred
since January 1, 2006 in the ordinary course of business consistent with
past practice and individually or in the aggregate, have not had and would
not reasonably be expected to have a Material Adverse Effect on Fisher and
its Subsidiaries, taken as a whole, (B) individually or in the aggregate,
have not had and would not reasonably be expected to have a Material
Adverse Effect on Fisher and its Subsidiaries, taken as a whole or (C)
were incurred pursuant to this Agreement or the transactions contemplated
hereby.
(v) Neither Fisher nor any of its Subsidiaries is a party to,
or has any commitment to become a party to, any joint venture, off-balance
sheet partnership or any similar contract or arrangement (including
without limitation any contract or arrangement relating to any transaction
or relationship between or among Fisher and any of its Subsidiaries, on
the one hand, and any unconsolidated Affiliate (as defined in Section
8.3(a)), including without limitation any structured finance, special
purpose or limited purpose entity or Person, on the other hand, or any
"off-balance sheet arrangement" (as defined in Item 303(a) of Regulation
S-K of the SEC)), where the result, purpose or intended effect of such
contract or arrangement is to avoid disclosure of any material transaction
involving, or material liabilities of, Fisher or any of its Subsidiaries
in Fisher's or such Subsidiary's published financial statements or other
Fisher SEC Documents.
(vi) No "material contract" (as such term is defined in Item
601(b)(10) of Regulation S-K of the SEC) filed as an exhibit to the Fisher
Form 10-K has been amended or modified, except for amendments or
modifications which have been filed as an exhibit to a subsequently dated
Fisher SEC Document or are not required to be filed with the SEC.
(e) Information Supplied. None of the information supplied or to
be supplied by or on behalf of Fisher for inclusion or incorporation by
reference in (i) the registration statement on Form S-4 to be filed with the SEC
by Thermo Electron in connection with the issuance of Thermo Electron Common
Stock in the Merger (including any amendments or supplements, the "Form S-4")
will, at the time the Form S-4 becomes effective under the Securities Act,
contain any untrue statement of a material fact or omit to state any material
fact
-15-
required to be stated therein or necessary to make the statements therein not
misleading or (ii) the Joint Proxy Statement will, at the date it is first
mailed to Fisher's stockholders or at the time of the Fisher Stockholders'
Meeting, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are made, not
misleading. The Joint Proxy Statement and the Form S-4 will comply as to form in
all material respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations thereunder. Notwithstanding the
foregoing provisions of this Section 3.1(e), no representation or warranty is
made by Fisher with respect to information or statements made or incorporated by
reference in the Form S-4 or the Joint Proxy Statement which were not supplied
by or on behalf of Fisher.
(f) Absence of Certain Changes or Events.
(i) Since January 1, 2006 through the date hereof, except as
and to the extent disclosed in the Fisher SEC Documents filed prior to the
date of this Agreement and except for liabilities incurred pursuant to
this Agreement or the transactions contemplated hereby:
(A) Fisher and its Subsidiaries have conducted their
business only in the ordinary course consistent with past practice;
(B) there has not been any split, combination or
reclassification of any of Fisher's capital stock or any
declaration, setting aside or payment of any dividend on, or other
distribution (whether in cash, stock or property) in respect of, in
lieu of or in substitution for, shares of Fisher's capital stock;
(C) except as required by a change in GAAP, there has not
been any change in accounting methods, principles or practices by
Fisher; and
(D) there has not been any action taken by Fisher or any
of its Subsidiaries that, if taken during the period from the date
of this Agreement through the Effective Time, would constitute a
breach of Section 4.1(a), other than actions in connection with
entering into this Agreement.
(ii) Since January 1, 2006 through the date hereof, there
have not been any changes, circumstances or events that, individually or
in the aggregate, have had, or would reasonably be expected to have, a
Material Adverse Effect on Fisher and its Subsidiaries, taken as a whole.
(g) Compliance with Applicable Laws; Permits; Litigation.
(i) Fisher, its Subsidiaries and employees hold all
authorizations, permits, licenses, certificates, easements, concessions,
franchises, variances, exemptions, orders, consents, registrations,
approvals and clearances of all Governmental Entities (including all
authorizations under the Federal Food, Drug and Cosmetic Act of 1938, as
amended (the "FDCA"), and the regulations of the U.S. Food
-16-
and Drug Administration (the "FDA") promulgated thereunder) and third
Persons which are required for Fisher and its Subsidiaries to own, lease
and operate its properties and other assets and to carry on their
respective businesses in the manner described in the Fisher SEC Documents
filed prior to the date hereof and as they are being conducted as of the
date hereof (the "Fisher Permits"), and all Fisher Permits are valid and
in full force and effect, except where the failure to have, or the
suspension or cancellation of, or the failure to be valid or in full force
and effect of, any such Fisher Permits, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect on
Fisher and its Subsidiaries, taken as a whole.
(ii) Fisher and its Subsidiaries are, and have been at all
times since January 1, 2004, in compliance with the terms of the Fisher
Permits and all laws, statutes, orders, rules, regulations, policies or
guidelines promulgated, or judgments, decisions or orders entered by any
Governmental Entity (all such laws, statutes, orders, rules, regulations,
policies, directives, guidelines, judgments, decisions and orders,
collectively, "Applicable Laws") relating to Fisher and its Subsidiaries
or their respective businesses, assets or properties, except where the
failure to be in compliance with the terms of the Fisher Permits or such
Applicable Laws, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on Fisher and its Subsidiaries,
taken as a whole. Since January 1, 2004, neither Fisher nor any of its
Subsidiaries has received any written notification from any Governmental
Entity (A) asserting that Fisher or any of its Subsidiaries is not in
compliance with, or at any time since such date has failed to comply with,
Applicable Laws (except for any such lack of compliance which,
individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect on Fisher and its Subsidiaries, taken as a
whole) or (B) threatening to revoke any Fisher Permit (except for any such
revocation which, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect on Fisher and its
Subsidiaries, taken as a whole) nor, to the Knowledge of Fisher, does any
basis exist therefor. As of the date hereof, no investigation or review by
any Governmental Entity is pending or, to the Knowledge of Fisher, has
been threatened in writing against Fisher or any of its Subsidiaries
which, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect on Fisher and its Subsidiaries, taken as a
whole.
(iii) Fisher is, and has been, in compliance in all material
respects with the provisions of SOX applicable to it.
(iv) Except as and to the extent disclosed in the Fisher SEC
Documents filed prior to the date of this Agreement, including the notes
to the financial statements included therein, no action, audit, demand,
claim, suit, proceeding, requirement or investigation by any Governmental
Entity, and no suit, action, mediation, arbitration or proceeding by any
Person, against or affecting Fisher or any of its Subsidiaries or any of
their respective properties, including Intellectual Property (as defined
in Section 8.3(g)), is pending or, to the Knowledge of Fisher, threatened
which, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect on Fisher and its Subsidiaries, taken as a
whole.
-17-
(v) Neither Fisher nor any of its Subsidiaries is, or at any
time since January 1, 2004 has been, subject to any outstanding order,
injunction or decree which, individually or in the aggregate, has had or
would reasonably be expected to have a Material Adverse Effect on Fisher
and its Subsidiaries, taken as a whole.
(h) Labor and Other Employment Matters.
(i) Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on Fisher, its
Subsidiaries, taken as a whole (A) no work stoppage, slowdown, lockout,
labor strike, material arbitrations or other material labor disputes
against Fisher or any of its Subsidiaries are pending or, to the Knowledge
of Fisher, threatened, (B) no unfair labor practice charges, grievances or
complaints are pending or, to the Knowledge of Fisher, threatened against
Fisher or any of its Subsidiaries, (C) neither Fisher nor any of its
Subsidiaries is delinquent in payments to any of its employees for any
wages, salaries, commissions, bonuses or other direct compensation for any
services performed for it or amounts required to be reimbursed to such
employees, (D) neither Fisher nor any of its Subsidiaries is liable for
any payment to any trust or other fund or to any Governmental Entity with
respect to unemployment compensation benefits, social security or other
benefits or obligations for employees, (E) no employee of Fisher, at the
officer level or above, has given written notice to Fisher or any of its
Subsidiaries that any such employee intends to terminate his or her
employment with Fisher or any of its Subsidiaries, (F) to the Knowledge of
Fisher, no employee of Fisher or any of its Subsidiaries is in any respect
in violation of any term of any employment contract, nondisclosure
agreement, common law nondisclosure obligations, non-competition
agreement, or any restrictive covenant to a former employer relating to
the right of any such employee to be employed by Fisher or any of its
Subsidiaries because of the nature of the business conducted or presently
proposed to be conducted by Fisher or any of its Subsidiaries or to the
use of trade secrets or proprietary information of others, (G) neither
Fisher nor any of its Subsidiaries is a party to, or otherwise bound by,
any consent decree with, or citation by, any Governmental Entity relating
to employees or employment practices and (H) Fisher and its Subsidiaries
are in compliance with all Applicable Laws, agreements, contracts,
policies, plans and programs relating to employment, employment practices,
compensation, benefits, hours, terms and conditions of employment and the
termination of employment, including but not limited to any obligations
pursuant to the Worker Adjustment and Retraining Notification Act of 1988,
as amended (the "WARN Act"), or any other comparable Applicable Law.
(ii) As of the date hereof,
(A) neither Fisher nor any of its Subsidiaries is a party
to, or otherwise bound by, any collective bargaining agreement or
any other agreement, work rules or practices with a labor union,
labor organization or works council, which, in the case of any
non-U.S. agreement, work rules or practices with a labor union,
labor organization or works council are material to Fisher and its
Subsidiaries, taken as a whole, nor are any such agreements, work
rules or practices presently being negotiated;
-18-
(B) no employee of Fisher or any of its Subsidiaries is
represented by any labor union, labor organization or works council
in his or her capacity as an employee of Fisher or any of its
Subsidiaries;
(C) no labor union, labor organization or works council
or group of employees of Fisher or any of its Subsidiaries has made
a pending demand for recognition or certification to Fisher or any
of its Subsidiaries, and there are no representation or
certification proceedings or petitions seeking a representation
proceeding presently pending or, to the Knowledge of Fisher,
threatened to be brought or filed with the National Labor Relations
Board ("NLRB") or any other comparable foreign, state or local labor
relations tribunal or authority; and
(D) to the Knowledge of Fisher, no labor union, labor
organization or works council is seeking to organize or represent
any employees of Fisher or any of its Subsidiaries.
(i) Benefit Plans.
(i) Section 3.1(i)(i)(A) of the Fisher Disclosure Schedule
sets forth a true and complete list of each material bonus, pension,
profit sharing, deferred compensation, incentive compensation, stock
ownership, stock purchase, stock option or other equity compensation,
phantom stock, stock-related or performance award, retirement, vacation,
severance or termination pay, change in control, retention, disability,
death benefit, hospitalization, medical, life insurance, loan, disability,
and other similar material plan, arrangement, agreement or understanding,
including, without limitation, each "employee benefit plan" (or similar
plan) within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or any other comparable
Applicable Law, whether or not subject to ERISA or such comparable
Applicable Law, and any material employment agreement, consulting
agreement, termination or severance agreement (such plans, agreements,
arrangements or understandings, except any plan which is a Multiemployer
Plan (as defined in Section 8.3(j)), collectively, "Benefit Plans") with
or for the benefit of any current or former employee, officer or director
of Fisher or any of its Subsidiaries or ERISA Affiliates (as defined in
Section 3.1(i)(v)) or with respect to which Fisher or any of its
Subsidiaries or ERISA Affiliates have any material obligations or
liabilities, including each material Benefit Plan that has been adopted or
maintained by Fisher, any of its Subsidiaries or any Affiliate, whether
formally or informally, or with respect to which Fisher, any of its
Subsidiaries or any Affiliate will or may have any material liability, for
the benefit of employees or consultants of Fisher or any of its
Subsidiaries who perform services outside the United States (collectively,
the "Fisher Benefit Plans"). With respect to the Fisher Benefit Plans, no
event has occurred, and there exists no condition or set of circumstances,
which would reasonably be expected to have a Material Adverse Effect on
Fisher and its Subsidiaries, taken as a whole, under ERISA, the Code or
any other Applicable Laws. Neither Fisher, nor any of its Subsidiaries,
nor, to the Knowledge of Fisher, any other Person, has any express
commitment, whether legally enforceable or not, to modify, change or
terminate any Fisher Benefit Plan, other than with respect to a
-19-
modification, change or termination required by ERISA or the Code, or any
other Applicable Law or administrative changes that do not increase the
liabilities or obligations under any such plans. Fisher has delivered or
made available to Thermo Electron true, correct and complete copies of all
Fisher Benefit Plans and, with respect thereto, if applicable, all
amendments, trust agreements, insurance contracts, other funding vehicles,
determination letters issued by the Internal Revenue Service (the "IRS"),
the most recent annual reports (Form 5500 series) filed with the IRS and
the most recent actuarial report or other financial statement relating to
such Fisher Benefit Plan.
(ii) Each Fisher Benefit Plan has been, in all material
respects, administered and operated in accordance with its terms, with the
applicable provisions of ERISA, the Code and other Applicable Laws and
with the terms of all applicable collective bargaining agreements. Each
Fisher Benefit Plan, including any material amendments thereto, that is
required to obtain approval by, or registration or qualification for
special tax status with, the appropriate taxation, social security or
supervisory authorities in the relevant country, state, territory or the
like (each, an "Approval") has received such Approval (or there remains a
period of time in which to obtain such Approval retroactive to the date of
any material amendment that has not previously received such Approval),
and no event has occurred which would reasonably be expected to result in
the revocation of such Approval or the imposition of material sanctions by
such authorities. Without limiting the generality of the foregoing, each
Fisher Benefit Plan that is intended to be qualified under Section 401(a)
of the Code has obtained a favorable determination letter from the IRS
that the Fisher Benefit Plan is so qualified and all related trusts are
exempt from U.S. federal income taxation under Section 501(a) of the Code,
and, to the Knowledge of Fisher, nothing has occurred, whether by action
or by failure to act, which would reasonably be expected to cause the loss
of such qualification or exemption.
(iii) As of the date hereof to the Knowledge of Fisher, no
oral or written representation or commitment with respect to any material
aspect of any Fisher Benefit Plan has been made to an employee or former
employee of Fisher or any of its Subsidiaries by an authorized Fisher
employee that is not materially in accordance with the written or
otherwise pre-existing terms and provisions of such Fisher Benefit Plans.
As of the date hereof, to the Knowledge of Fisher, neither Fisher nor any
of its Subsidiaries has entered into any agreement, arrangement or
understanding, whether written or oral, with any trade union, works
council or other employee representative body or any material number or
category of its employees which would prevent, restrict or materially
impede the implementation of any layoff, redundancy, severance or similar
program within its or their respective workforces (or any part of them).
(iv) There are no material unresolved claims or disputes
under the terms of, or in connection with, any Fisher Benefit Plan (other
than routine undisputed claims for benefits), and no action, legal or
otherwise, has been commenced or threatened with respect to any material
claim or otherwise in connection with a Fisher Benefit Plan.
-20-
(v) With respect to each Funded Retirement Plan (as defined
in this Section 3.1(i)(v)) of Fisher or any of its Subsidiaries, the
aggregate fair market value of the assets of such Funded Retirement Plan
was, as of the most recently computed actuarial valuation of such plan,
equal to or greater than the aggregate value of its liabilities assessed
on an ongoing basis and calculated in accordance with the actuarial
methods and assumptions used in such valuation pursuant to such Funded
Retirement Plan and Applicable Law and GAAP. For purposes of this
Agreement, "Funded Retirement Plan" means, with respect to a party, a
Benefit Plan that is a "pension plan" within the meaning of Section 3(2)
of ERISA that is subject to ERISA and under which the assets to satisfy
the benefit obligations are legally segregated from the general assets of
such party or any of its Subsidiaries and are not subject to the creditors
of such party or any of its Subsidiaries. None of Fisher or any other
Person or entity under common control within the meaning of Section
414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") with Fisher has
incurred, or is reasonably expected to incur, any liability to a Funded
Retirement Plan under Title IV of ERISA (other than for contributions not
yet due) or to the Pension Benefit Guaranty Corporation (other than for
payment of premiums not yet due) that, when aggregated with other such
liabilities, would reasonably be expected to result in a material
liability of Fisher and its Subsidiaries, taken as a whole, which
liability has not been fully paid.
(vi) Section 3.1(i)(vi) of the Fisher Disclosure Schedule
sets forth a true and complete list of each Multiemployer Plan to which
Fisher or any ERISA Affiliate of Fisher contributes or is required to
contribute, or to which, or with respect to which, Fisher or any ERISA
Affiliate of Fisher has any material liability. If any Fisher
Multiemployer Plan is subject to Title IV of ERISA, then, (A) neither
Fisher nor any ERISA Affiliate of Fisher has made or suffered a "complete
withdrawal" or a "partial withdrawal," as such terms are respectively
defined in Sections 4203 and 4205 of ERISA (or any liability resulting
therefrom has been satisfied in full), (B) no event has occurred that
presents a material risk of a complete or partial withdrawal, (C) neither
Fisher nor any ERISA Affiliate of Fisher has any contingent liability
under Section 4204 of ERISA, (D) no circumstances exist that present a
material risk that any such plan will go into reorganization, and (E) to
the best of Fisher's Knowledge, the aggregate withdrawal liability of
Fisher and each ERISA Affiliate of Fisher computed as if a complete
withdrawal by Fisher and any ERISA Affiliate of Fisher had occurred under
each such Fisher Benefit Plan on the date hereof, would not reasonably be
expected to result in a material liability to Fisher. No Fisher Benefit
Plan subject to ERISA is a plan that has two or more contributing sponsors
at least two of whom are not under common control, within the meaning of
Section 4063 of ERISA.
(vii) No Fisher Benefit Plan provides health benefits
(whether or not insured) with respect to employees or former employees of
Fisher or any of its Subsidiaries after retirement or other termination of
service (other than coverage mandated by Applicable Laws or benefits, the
full cost of which is borne by the employee or former employee).
(viii) Neither the negotiation and execution of this
Agreement nor the consummation of the transactions contemplated hereby
will (either alone or upon
-21-
the occurrence of any additional or subsequent events) constitute an event
under any Fisher Benefit Plan (for this purpose, Fisher Benefit Plan
(other than with respect to those Plans that are Fisher Foreign Plans)
shall be determined without regard to whether any plan, agreement, policy,
understanding or arrangement is material despite the use of such qualifier
in Section 3.1(i)(i) for purposes of the definitions of Benefit Plan and
Fisher Benefit Plan) that will or may result in any payment (whether of
severance pay or otherwise), acceleration of payment, forgiveness of
indebtedness, vesting, distribution, increase in benefits or obligation to
fund benefits with respect to any employee or former employee of Fisher or
any of its Subsidiaries or limit the ability to amend, terminate or
receive a reversion of assets from any Fisher Benefit Plan or related
trust. There is no contract, agreement, plan or arrangement with an
employee or former employee of Fisher to which Fisher or any of its
Subsidiaries is a party as of the date of this Agreement that,
individually or collectively and as a result of the transaction
contemplated hereby (whether alone or upon the occurrence of any
additional or subsequent events) would reasonably be expected to give rise
to the payment of any amount that would not be deductible pursuant to
Sections 280G or 162(m) of the Code.
(ix) Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on Fisher and its
Subsidiaries, taken as a whole, with respect to each Fisher Benefit Plan
established or maintained outside of the United States for the benefit of
employees of Fisher or any Subsidiary of Fisher residing outside the
United States (each, a "Fisher Foreign Plan"): (i) each Fisher Foreign
Plan is in compliance with the applicable provisions of the laws and
regulations regarding employee benefits, mandatory contributions and
retirement plans of each jurisdiction applicable to such Fisher Foreign
Plan; (ii) each Fisher Foreign Plan required to be registered has been
registered and has been maintained in good standing with applicable
regulatory authorities and (iii) the fair market value of the assets of
each funded Fisher Foreign Plan, the liability of each insurer for any
Fisher Foreign Plan funded through insurance or the book reserve
established for any Fisher Foreign Plan, together with any accrued
contributions, is sufficient to procure or provide for the accrued benefit
obligations, as of the Closing Date, with respect to all current and
former participants in such plan according to the actuarial assumptions
and valuations most recently used to determine employer contributions to
such Fisher Foreign Plan and no transaction contemplated by this Agreement
shall cause such assets or insurance obligations to be less than such
benefit obligations, and any and all amounts required to be accrued with
respect to any Fisher Foreign Plan or pursuant to any statutory
requirements pertaining to employee benefits, mandatory contributions,
retirement plans or similar benefits, have been properly and timely
accrued, including accruals relating to any severance, termination pay or
profit sharing benefits.
(j) Taxes. Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on Fisher and its
Subsidiaries, taken as a whole:
(i) Each of Fisher and its Subsidiaries has (A) duly and
timely filed (or there have been filed on its behalf) all Tax Returns (as
defined in Section 3.1(j)(xi)) required to be filed by it (taking into
account all applicable extensions) with
-22-
the appropriate Tax Authority (as defined in Section 3.1(j)(xi)) and all
such Tax Returns are true, correct and complete, (B) timely paid in full
all Taxes (as defined in Section 3.1(j)(xi)) required to be paid by it and
(C) made adequate provision in accordance with GAAP (or there has been
paid or provision has been made on its behalf) for the payment of all
Taxes not yet due and (D) complied with all Applicable Laws relating to
the payment and withholding of Taxes.
(ii) There are no Liens for Taxes upon any property or assets
of Fisher or any of its Subsidiaries, except for Liens for Taxes not yet
due and payable or for which adequate reserves have been provided in
accordance with GAAP in the most recent financial statements contained in
the Fisher SEC Documents filed prior to the date of this Agreement.
(iii) The most recent financial statements contained in the
Fisher SEC Documents reflect an adequate (A) reserve in accordance with
GAAP for all Tax liabilities of Fisher and its Subsidiaries for all
taxable periods and portions thereof accrued through the date of such
financial statements and (B) valuation allowance in accordance with GAAP
for all deferred tax assets of Fisher and its Subsidiaries for all taxable
periods and portions thereof accrued through the date of such financial
statements.
(iv) There is no audit, examination, deficiency, refund
litigation, proposed adjustment or matter in controversy with respect to
any Taxes or Tax Return of Fisher or any of its Subsidiaries. Neither
Fisher nor any of its Subsidiaries has received written notice of any
claim made by a Governmental Entity in a jurisdiction where Fisher or any
of its Subsidiaries, as applicable, does not file a Tax Return, that
Fisher or such Subsidiary is or may be subject to taxation by that
jurisdiction.
(v) The Tax Returns of Fisher and each of its Subsidiaries,
including any predecessors thereof, have been examined by the applicable
Tax Authority (or the applicable statutes of limitations for the
assessment of income Taxes for such periods have expired) for all periods
through and including December 31, 2003, and no deficiencies were asserted
as a result of such examinations which have not been resolved and fully
paid or accrued as a liability on the most recent financial statements
contained in the Fisher SEC Documents.
(vi) There are no outstanding requests, agreements, consents
or waivers to extend the statutory period of limitations applicable to the
assessment of any Taxes or deficiencies against Fisher or any of its
Subsidiaries, and no power of attorney granted by either Fisher or any of
its Subsidiaries with respect to any Taxes is currently in force.
(vii) Neither Fisher nor any of its Subsidiaries is a party
to any agreement providing for the allocation, indemnification or sharing
of Taxes (other than any agreements solely between or among Fisher and its
Subsidiaries), and neither Fisher nor any of its Subsidiaries (A) has been
a member of an affiliated group (or similar state, local or foreign filing
group) filing a consolidated income Tax Return (other than a group
-23-
the common parent of which is Fisher) or (B) has any liability for the
Taxes of any Person (other than Fisher or any of its Subsidiaries) under
Treasury Regulation ss. 1.1502-6 (or any similar provision of state, local
or foreign law), as a transferee or successor, by contract or otherwise.
(viii) Neither Fisher nor any of its Subsidiaries has (A)
agreed to make nor is it required to make any material adjustment under
Section 481(a) of the Code by reason of a change in accounting method or
otherwise; or (B) constituted either a "distributing corporation" or a
"controlled corporation" (within the meaning of Section 355(a)(1)(A) of
the Code) in a distribution of stock qualifying for tax-free treatment
under Section 355 of the Code (I) in the two years prior to the date of
this Agreement or (II) in a distribution which could otherwise constitute
part of a "plan" or "series of related transactions" (within the meaning
of Section 355(e) of the Code) in connection with the Merger.
(ix) Fisher is not, and has not been, a United States real
property holding corporation (as defined in Section 897(c)(2) of the Code)
during the applicable period specified in Section 897(c)(1)(A)(ii) of the
Code.
(x) No closing agreements, private letter rulings, technical
advice memoranda or similar agreement or ruling have been entered into or
issued by any Tax Authority with respect to Fisher or any of its
Subsidiaries within five years of the date of this Agreement, and no such
agreement or ruling has been applied for and is currently pending.
(xi) "Taxes" means any and all federal, state, local, foreign
or other taxes of any kind (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect thereto)
imposed by any Governmental Entity, including, without limitation, taxes
or other charges on or with respect to income, franchises, windfall or
other profits, gross receipts, property, sales, use, capital stock,
payroll, employment, unemployment, social security, workers' compensation,
or net worth, and taxes or other charges in the nature of excise,
withholding, ad valorem or value added; "Tax Authority" means the IRS and
any other domestic or foreign Governmental Entity responsible for the
administration or collection of any Taxes; and "Tax Return" means any
return, report or similar statement (including the attached schedules)
required to be filed with respect to Taxes, including, without limitation,
any information return, claim for refund, amended return, or declaration
of estimated Taxes.
(k) Interested Party Transactions. Since the date of the Fisher
Balance Sheet, no event has occurred that would be required to be reported as a
Certain Relationship or Related Transaction pursuant to Statement of Financial
Accounting Standards No. 57 or Item 404 of Regulation S-K of the SEC.
(l) Environmental Matters. Except as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect on
Fisher and its Subsidiaries, taken as a whole, (i) the operations of Fisher and
its Subsidiaries are, and at all times since January 1, 2004 have been, in
compliance with all applicable Environmental Laws
-24-
(as defined in Section 8.3(d)), including possession and compliance with the
terms of all licenses, permits, registrations, approvals, certifications and
consents required by Environmental Laws, (ii) there are no pending or, to the
Knowledge of Fisher, threatened suits, actions, investigations or proceedings
under or pursuant to Environmental Laws against Fisher or any of its
Subsidiaries or involving any real property currently or, to the Knowledge of
Fisher, formerly owned, operated or leased or other sites at which Hazardous
Materials (as defined in Section 8.3(f) were disposed of, or allegedly disposed
of, by Fisher or any of its Subsidiaries, (iii) Fisher and its Subsidiaries are
not subject to and have received no written allegations of any Environmental
Liabilities (as defined in Section 8.3(e)), and no facts, circumstances or
conditions relating to, arising from, associated with or attributable to any
real property currently or, to the Knowledge of Fisher, formerly owned, operated
or leased by Fisher or any of its Subsidiaries or operations thereon has
resulted in or would reasonably be expected to result in Environmental
Liabilities, and (iv) all real property owned or operated by Fisher or any of
its Subsidiaries is free of contamination from Hazardous Materials that would
have an adverse effect on human health or the environment.
(m) Intellectual Property. Except as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect on
Fisher and its Subsidiaries, taken as a whole, (i) Fisher or a Subsidiary of
Fisher (A) owns and is listed in the records of the appropriate United States,
state or foreign registry as the current owner of record for each application
and registration of Intellectual Property or (B) has a legally enforceable right
to use (in each case, free and clear of any Liens) all Intellectual Property
used in or necessary for the conduct of its business as currently conducted,
including without limitation all patents and patent applications and all
trademark registrations and trademark applications; (ii) except as set forth in
Section 3.1(m)(ii) of the Fisher Disclosure Schedule, to the Knowledge of
Fisher, the conduct of the business of Fisher and its Subsidiaries as currently
conducted does not infringe on or misappropriate, either directly or indirectly
(such as through contributory infringement or inducement to infringe), the
Intellectual Property rights of any Person, and the use by Fisher or any of its
Subsidiaries of any Intellectual Property is, to the Knowledge of Fisher, in
accordance with any applicable grant, license, agreement, instrument or other
arrangement pursuant to which Fisher or any Affiliate acquired the right to use
such Intellectual Property; (iii) to the Knowledge of Fisher, no Person is
misappropriating, infringing, diluting or otherwise violating any right of
Fisher or any of its Subsidiaries with respect to any Intellectual Property
owned or used by Fisher or any of its Subsidiaries, and no such claims, suits,
arbitrations or other adversarial proceedings have been brought or threatened
against any Person by Fisher or any of its Subsidiaries; (iv) to the Knowledge
of Fisher, except as set forth in Section 3.1(m)(iv) of the Fisher Disclosure
Schedule, neither Fisher nor any of its Subsidiaries has received written notice
by any Person of any pending or threatened claim, suit, action, mediation,
arbitration, order or other adversarial proceeding (A) alleging infringement (or
other violation) by Fisher or any of its Subsidiaries of Intellectual Property
or other rights of any Person or (B) challenging Fisher's or any of its
Subsidiaries' ownership or use of, or the validity, enforcement, registrability
or maintenance of, any Intellectual Property owned or used by Fisher or any of
its Subsidiaries, and, to the Knowledge of Fisher, no Intellectual Property
owned or used by Fisher or any of its Subsidiaries is being used or enforced in
a manner that would reasonably be expected to result in the abandonment,
cancellation or unenforceability of such Intellectual Property; (v) to the
Knowledge of Fisher, the Intellectual Property owned or used by Fisher or any of
its Subsidiaries (A) has been duly maintained, (B) is subsisting, in full force
and effect, (C) is valid and
-25-
enforceable, (D) has not expired, been cancelled or abandoned and (E) all
maintenance, registration and renewal fees necessary to preserve the rights of
Fisher in connection with such Intellectual Property have been paid in a timely
manner, and there are no actions that must be taken by Fisher or any of its
Subsidiaries within 90 days from the date hereof, including the payment of any
registration, maintenance or renewal fees or the filing with the United States
Patent and Trademark Office or such other appropriate U.S. or foreign office or
similar administrative agency of documents, applications or certificates for the
purposes of obtaining, maintaining, perfecting, preserving or renewing any
rights in the registered or applied-for Intellectual Property; (vi) to the
Knowledge of Fisher, except as set forth in Section 3.1(m)(vi) of the Fisher
Disclosure Schedule, neither Fisher nor any of its Subsidiaries has entered into
any consents, judgments, orders, indemnifications, forbearances to sue,
settlement agreements, licenses or other arrangements which (A) restrict
Fisher's or any of its Subsidiaries' right to use any Intellectual Property, (B)
restrict Fisher's or any of its Subsidiaries' businesses in order to accommodate
a third Person's Intellectual Property rights, (C) permit third parties to use
any Intellectual Property owned or controlled by Fisher or any of its
Subsidiaries or (D) reasonably would be expected to provide a third Person a
defense to patent infringement in connection with any Intellectual Property
owned or used by Fisher; (vii) to the Knowledge of Fisher, Fisher and each of
its Subsidiaries has used reasonable best efforts to maintain the
confidentiality of the Intellectual Property and all other property used in the
business of Fisher or any of its Subsidiaries as presently conducted; and (viii)
each current and former employee of Fisher or any of its Subsidiaries who has
contributed to or participated in research and development activities will not,
after giving effect to the transactions contemplated herein, own or retain any
rights to use any of the Intellectual Property owned or used by Fisher or any of
its Subsidiaries. To the Knowledge of Fisher, no software used in the conduct of
its business (a) contains any device or feature designed to disrupt, disable, or
otherwise impair its functioning, or (b) is subject to the terms of any "open
source" or other similar license requiring source code of software owned by
Fisher to be publicly distributed or dedicated to the public, other than any
such device, feature or license which, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect on Fisher and its
Subsidiaries, taken as a whole. The consummation of the transactions
contemplated by this Agreement will not result in the loss or impairment of or
payment of any additional amounts with respect to Fisher's right to own, use, or
hold for use any of the Intellectual Property owned, used, or held for use in
the conduct of its business as currently conducted other than any such losses,
impairments, payments, conflicts, or failure to obtain consents, which,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on Fisher and its Subsidiaries, taken as a whole.
(n) FDA Compliance. All products currently being manufactured,
tested, developed, processed, labeled, stored or distributed by or on behalf of
Fisher and its Subsidiaries, which are subject to the jurisdiction of the FDA,
are being manufactured, tested, developed, processed, labeled, stored,
distributed, and marketed and promoted, including promotions on Fisher's
website, in compliance with all Applicable Laws or regulations issued by the FDA
or any other Governmental Entity, including without limitation, the FDA's
current Good Manufacturing Practice (including, but not limited to, compliance
with corrective and preventive action requirements) and Medical Device Reporting
regulations, and recalls and corrective actions that are required to be reported
to the FDA pursuant to 21 C.F.R. Part 806 have been reported, except where any
failure to so comply would not, individually or in the aggregate, have a
Material Adverse Effect on Fisher and its Subsidiaries, taken as a whole. All
-26-
applicable operations of Fisher and each of its Subsidiaries have achieved and
maintained ISO 13485 Quality System certification, and there is no pending or,
to Fisher's Knowledge, threatened, audit, repeal, failure to renew or challenge
to any such certifications, other than where the failure to achieve or maintain
such certification or any such audit, repeal, failure to renew or challenge
would not, individually or in the aggregate, have a Material Adverse Effect on
Fisher and its Subsidiaries, taken as a whole. All products being manufactured
by Fisher and its Subsidiaries are in compliance with applicable registration
and listing requirements required by Applicable Law for each site at which a
product of Fisher or any of its Subsidiaries is manufactured except where any
failure to so comply would not, individually or in the aggregate, have a
Material Adverse Effect on Fisher and its Subsidiaries, taken as a whole. All
pre-clinical and clinical trials being conducted by or on behalf of Fisher or
any of its Subsidiaries or that were conducted on its behalf to support FDA
approvals or clearances are being or were conducted in compliance with all
Applicable Laws of the FDA or any other Governmental Entity, including without
limitation, the applicable FDA regulations and federal and state laws, and
regulations restricting the use and disclosure of individually identifiable
health information except where any failure to so comply would not, individually
or in the aggregate, have a Material Adverse Effect on Fisher and its
Subsidiaries, taken as a whole. Neither Fisher nor any of its Subsidiaries is
the subject, officially or otherwise, of any pending or, to Fisher's Knowledge,
threatened in writing investigation by the FDA pursuant to its "Fraud, Untrue
Statements of Material Facts, Bribery, and Illegal Gratuities" Final Policy set
forth in 56 Fed. Reg. 46191 (September 10, 1991) and any amendments thereto. To
Fisher's Knowledge, there is no reasonable basis for the FDA to invoke its
policy with respect to "Fraud, Untrue Statements of Material Facts, Bribery and
Illegal Gratuities" and any amendments thereto with respect to the operations of
Fisher or any its Subsidiaries that would result in any material violation of
such policies. To Fisher's Knowledge, each product distributed, sold or leased,
or service rendered, by Fisher or any of its Subsidiaries complies with all
applicable product safety standards of each applicable product safety agency,
commission, board or other Governmental Entity, other than where the failure to
be in compliance would not, individually or in the aggregate, have a Material
Adverse Effect on Fisher and its Subsidiaries, taken as a whole. Fisher and its
Subsidiaries are in compliance with all applicable FDA import and export
requirements, including, but not limited to, import-for-export requirements,
export notifications or authorizations and record keeping requirements except as
would not have, individually or in the aggregate, a Material Adverse Effect on
Fisher and its Subsidiaries, taken as a whole. All devices distributed by Fisher
and its Subsidiaries have obtained any clearances or approvals required by the
FDA to market these devices, including any modifications to the devices or their
labeling, except as would not have, individually or in the aggregate, a Material
Adverse Effect on Fisher and its Subsidiaries, taken as a whole.
(o) State Takeover Statutes. Fisher has, or will have prior to
the Effective Time, taken all necessary action so that, assuming compliance by
Thermo Electron and Merger Sub with their respective obligations hereunder and
the accuracy of the representations and warranties made by Thermo Electron and
Merger Sub herein, no "business combination," "moratorium," "fair price,"
"control share acquisition" or other state antitakeover statute or regulation
nor any takeover-related provision in the Fisher Organizational Documents, would
(i) prohibit or restrict Fisher's ability to perform its obligations under this
Agreement, any related agreement or the Certificate of Merger or its ability to
consummate the transactions contemplated hereby and thereby, (ii) have the
effect of invalidating or voiding this Agreement
-27-
or the Certificate of Merger, or any provision hereof or thereof, or (iii)
subject Thermo Electron to any impediment or condition in connection with the
exercise of any of its rights under this Agreement or the Certificate of Merger.
(p) Brokers. Except for fees payable to Goldman, Sachs & Co
("Goldman") and Lazard Freres & Co. LLC ("Lazard"), no broker, investment
banker, financial advisor or other Person is entitled to any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Fisher. Fisher has previously delivered to Thermo Electron a true
and complete copy of the engagement letters between each of Goldman and Lazard
and Fisher.
(q) Opinion of Financial Advisor. Fisher has received the opinion
of each of Goldman and Lazard, dated the date of this Agreement, to the effect
that, as of such date, the Exchange Ratio is fair, from a financial point of
view, to the holders of Fisher Common Stock.
(r) Material Contracts.
(i) For purposes of this Agreement, "Fisher Material
Contract" shall mean:
(A) Any employment, severance or consulting Contract or
offer letter with an employee or former employee, officer or
director of Fisher or any Subsidiary of Fisher (other than any
unwritten Contract for the employment of any such employee or former
employee implied at law) which will require the payment of amounts
by Fisher or any Subsidiary of Fisher, as applicable, after the date
hereof in excess of $750,000 per annum;
(B) Any collective bargaining Contract, or any other
agreement or work rule or practice with any labor union, labor
organization or works council;
(C) Any Contract for capital expenditures or the
acquisition or construction of fixed assets which requires aggregate
future payments in excess of $10,000,000;
(D) Any Contract containing covenants of Fisher or any
Subsidiary of Fisher (1) to indemnify or hold harmless another
Person or group of Persons, unless such indemnification or hold
harmless obligation to such Person, or group of Persons, as the case
may be, would not reasonably be expected to exceed a maximum of
$5,000,000 (except for product warranty obligations in Contracts for
the sale of goods in the ordinary course of business) or (2) not to
(or otherwise restrict or limit the ability of Fisher or any of its
Subsidiaries to) compete in any line of business or geographic area;
-28-
(E) Any Contract requiring aggregate future payments or
expenditures in excess of $5,000,000 and relating to cleanup,
abatement, remediation or similar actions in connection with
environmental liabilities;
(F) Any license, royalty Contract or other Contract with
respect to Intellectual Property which, pursuant to the terms
thereof, requires payments by Fisher or any Subsidiary of Fisher in
excess of $3,000,000 per annum;
(G) Any Contract pursuant to which Fisher or any
Subsidiary of Fisher has entered into a partnership or joint venture
with any other Person (other than Fisher or any Subsidiary of
Fisher) for which the carrying value exceeds $5,000,000;
(H) Any indenture, mortgage, loan, guarantee or credit
Contract under which Fisher or any Subsidiary of Fisher has
outstanding indebtedness or any outstanding note, bond, indenture or
other evidence of indebtedness for borrowed money or otherwise or
any guaranteed indebtedness for money borrowed by others, in each
case, for or guaranteeing an amount in excess of $10,000,000, other
than any such indebtedness between Fisher (whether as creditor or
debtor) and any wholly owned Subsidiary of Fisher or between any
wholly owned Subsidiaries of Fisher;
(I) Any Contract under which Fisher or any Subsidiary of
Fisher is (1) a lessee of real property, (2) a lessee of, or holds
or uses, any machinery, equipment, vehicle or other tangible
personal property owned by a third Person, (3) a lessor of real
property, or (4) a lessor of any tangible personal property owned by
Fisher or any Subsidiary of Fisher, in each case which requires
annual payments in excess of $3,000,000;
(J) Any Contract (other than purchase or sale orders in
the ordinary course of business that are terminable or cancelable by
Fisher without penalty on 90 days' notice or less) under which
Fisher or any Subsidiary of Fisher is a purchaser or supplier of
goods and services which, pursuant to the terms thereof, requires
payments by or to Fisher or any Subsidiary of Fisher in excess of
$10,000,000 per annum;
(K) Any material Contract (including guarantees) between
Fisher or any wholly-owned Subsidiary of Fisher and another
Subsidiary of Fisher that is not wholly-owned by Fisher;
(L) Any Contract other than a Fisher Benefit Plan which
requires payments by Fisher or any Subsidiary of Fisher in excess of
(i) $3,000,000 per annum containing "change of control" or similar
provisions, or (ii) $1,000,000, to the Knowledge of Fisher,
containing "change of control" or similar provisions;
-29-
(M) Any Contract entered into on or after January 1, 2003
relating to the acquisition or disposition of any business or any
assets (whether by merger, sale of stock or assets or otherwise), in
an amount in excess of $100,000,000 (all of which Contracts have
been made available to Thermo Electron prior to the date hereof);
(N) Any Contract (other than Contracts of the type
described in subclauses (A) through (M) above) that involves
aggregate payments by or to Fisher or any Subsidiary of Fisher in
excess of $25,000,000 per annum; and
(O) Any Contract the termination or breach of which, or
the failure to obtain consent in respect of which, would reasonably
be expected to have a Material Adverse Effect on Fisher and its
Subsidiaries, taken as a whole.
(ii) Schedule. Section 3.1(r)(ii) of the Fisher Disclosure
Schedule sets forth a list of all Fisher Material Contracts as of the date
hereof other than those listed as an exhibit to Fisher's most recent Form
10-K.
(iii) No Breach. All Fisher Material Contracts are valid and
in full force and effect and enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting the
rights and remedies of creditors generally and to general principles of
equity (regardless of whether considered in a proceeding in equity or at
law), except to the extent that (A) they have previously expired in
accordance with their terms or (B) the failure to be in full force and
effect, individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect on Fisher and its Subsidiaries, taken as
a whole. Neither Fisher nor any of its Subsidiaries, nor, to Fisher's
Knowledge, any counterparty to any Fisher Material Contract, has violated
any provision of, or committed or failed to perform any act which, with or
without notice, lapse of time or both, would constitute a default under
the provisions of any Fisher Material Contract, except in each case for
those violations and defaults which, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect on
Fisher and its Subsidiaries, taken as a whole.
(s) Real Property. Section 3.1(s) of the Fisher Disclosure
Schedule lists all material real property owned in fee by Fisher or any of its
Subsidiaries (the "Fisher Owned Real Property") or leased by Fisher or any of
its Subsidiaries as lessee (the "Fisher Leased Real Property"). Fisher or any of
its Subsidiaries owns good and valid title to the Fisher Owned Real Property and
has valid and enforceable leasehold interests under the leases with respect to
the Fisher Leased Real Property, free and clear of all Liens other than (i)
Permitted Liens (as defined in Section 8.3(k) and (ii) easements, covenants,
rights-of-way and other encumbrances or restrictions, whether recorded or
referred to in an applicable lease or unrecorded, which do not materially impair
the continued use of the property subject thereto as currently used, but in no
event, with respect to clauses (i) and (ii), environmental or Tax Liens,
judgments, lis pendens or any Lien that would render the title to the Fisher
Owned Real Property uninsurable by a reputable title insurance company. All of
the improvements located on any
-30-
Fisher Owned Real Property or Fisher Leased Real Property are in good condition
and repair (subject to normal wear and tear) without any structural defects of
any kind. Except as set forth in Section 3.1(s) of the Fisher Disclosure
Schedule, each material lease with respect to the Fisher Leased Real Property is
valid, unmodified and in full force and effect, and there are no material
subleases with respect to the Fisher Leased Real Property. Neither any landlord
nor Fisher nor any of its Subsidiaries party to any material lease with respect
to the Fisher Leased Real Property is in monetary or other material default
under any such lease.
(t) Reorganization. As of the date of this Agreement, neither
Fisher nor any of its Subsidiaries (a) has taken (or caused to be taken) any
action or knows of any fact, agreement, plan or other circumstance that would
reasonably be expected to prevent the Merger from qualifying as a
"reorganization" within the meaning of Section 368(a) of the Code or (b) knows
of any reason why all approvals required for the consummation of the
transactions contemplated by this Agreement should not be obtained on a timely
basis.
SECTION 3.2. Representations and Warranties of Thermo Electron and
Merger Sub . Except as set forth in the disclosure schedule dated as of the date
of this Agreement and executed and delivered by Thermo Electron and Merger Sub
to Fisher concurrently with or prior to the execution and delivery by Thermo
Electron and Merger Sub of this Agreement (the "Thermo Electron Disclosure
Schedule"), Thermo Electron and Merger Sub represent and warrant to Fisher as
set forth in this Section 3.2. Each disclosure set forth in the Thermo Electron
Disclosure Schedule, and any other information included in the Thermo Electron
Disclosure Schedule, is identified by reference to, or has been grouped under a
heading referring to, a specific individual subsection of this Agreement and
shall be deemed to be disclosed solely for purposes of, and shall qualify and be
treated as an exception to, such subsection, except to the extent that
disclosure in one subsection of the Thermo Electron Disclosure Schedule is
specifically referred to in another subsection of the Thermo Electron Disclosure
Schedule by appropriate cross-reference and except to the extent that the
relevance of a disclosure in one subsection of the Thermo Electron Disclosure
Schedule to another subsection of the Thermo Electron Disclosure Schedule is
reasonably apparent. The parties hereby agree that no reference to or disclosure
of any item or other matter in the Thermo Electron Disclosure Schedule shall be
construed as an admission or indication that (1) such item or other matter is
material, (2) such item or other matter is required to be referred to or
disclosed in the Thermo Electron Disclosure Schedule or (3) any breach or
violation of Applicable Laws or any Contract exists or has actually occurred.
(a) Organization, Standing and Corporate Power; Charter
Documents; Subsidiaries.
(i) Organization, Standing and Corporate Power. Thermo
Electron and each of its Subsidiaries is a corporation or other legal
entity duly organized, validly existing and in good standing (with respect
to jurisdictions which recognize such concept) under the laws of the
jurisdiction in which it is incorporated or otherwise organized and has
the requisite corporate (or similar) power and authority and all necessary
government approvals to own, lease and operate its properties and to carry
on its business as currently conducted, except for those jurisdictions in
which the failure to have such power, authority or government approvals
and to be so organized, existing or
-31-
in good standing would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect (as defined in Section
8.3(i)) on Thermo Electron and its Subsidiaries, taken as a whole. Each of
Thermo Electron and each of its Subsidiaries is duly qualified or licensed
to do business and is in good standing (with respect to jurisdictions
which recognize such concept) in each jurisdiction in which the nature or
conduct of its business or the ownership, leasing or operation of its
properties makes such qualification, licensing or good standing necessary,
except for those jurisdictions where the failure to be so qualified or
licensed or to be in good standing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
Thermo Electron and its Subsidiaries, taken as a whole.
(ii) Charter Documents. Thermo Electron and Merger Sub have
delivered or made available to Fisher prior to the execution of this
Agreement complete and correct copies of (A) the Amended and Restated
Certificate of Incorporation of Thermo Electron (including all
certificates of designation), as amended and currently in effect (the
"Thermo Electron Charter"), and the By-Laws of Thermo Electron, as amended
and currently in effect (the "Thermo Electron By-Laws," and, together with
the Thermo Electron Charter, the "Thermo Electron Organizational
Documents") and (B) the articles of incorporation and By-Laws of Merger
Sub and articles or certificate of incorporation and By-Laws or like
organizational documents of each of the Thermo Electron Material
Subsidiaries (as defined in Section 3.2(a)(iii)), as amended and currently
in effect (collectively, the "Thermo Electron Subsidiary Organizational
Documents"), and each such instrument is in full force and effect. Thermo
Electron is not in material violation of the Thermo Electron
Organizational Documents and no Thermo Electron Material Subsidiary is in
material violation of its Thermo Electron Subsidiary Organizational
Documents.
(iii) Subsidiaries. Section 3.2(a)(iii) of the Thermo
Electron Disclosure Schedule lists all the Subsidiaries of Thermo Electron
which, as of the date of this Agreement, have annual gross revenues in
excess of $200,000,000 (the "Thermo Electron Material Subsidiaries").
Except as set forth in Section 3.2(a)(iii) of the Thermo Electron
Disclosure Schedule, all the outstanding shares of capital stock of, or
other equity interests in, each Thermo Electron Material Subsidiary have
been validly issued and are fully paid and nonassessable and are owned
directly or indirectly by Thermo Electron, free and clear of all Liens and
free of any other restriction (including preemptive rights and any
restriction on the right to vote, sell or otherwise dispose of such
capital stock or other ownership interests).
(b) Capital Structure.
(i) The authorized capital stock of Thermo Electron consists
of 350,000,000 shares of Thermo Electron Common Stock, and 50,000 shares
of preferred stock, par value $100 per share ("Thermo Electron Preferred
Stock"), of which 40,000 shares have been designated Series B Junior
Participating Preferred Stock. At the close of business on May 1, 2006,
(A) 163,699,909 shares of Thermo Electron Common Stock (including all
awards based on Thermo Electron Common Stock that are restricted stock
granted under a Thermo Electron stock plan listed in Section 3.2(b)(i) of
the Thermo
-32-
Electron Disclosure Schedule (which list includes the total aggregate
number of options authorized for issuance under such plans) (such plans,
collectively, the "Thermo Electron Stock Plans") within the meaning of the
applicable Thermo Electron Stock Plan ("Thermo Electron Restricted
Stock")) were issued and outstanding; (B) 19,345,041 shares of Thermo
Electron Common Stock were held by Thermo Electron in its treasury; (C) no
shares of Thermo Electron Preferred Stock were issued and outstanding; (D)
1,845,936 shares of Thermo Electron Common Stock were reserved for
issuance upon conversion of Thermo Electron's 3.25% Subordinated
Convertible Debentures due 2007 (the "Thermo Electron Convertible
Debentures"); and (E) 21,657,555 shares of Thermo Electron Common Stock
were reserved for issuance in respect of outstanding options to acquire
shares of Thermo Electron Common Stock ("Thermo Electron Options") or
outstanding awards based on Thermo Electron Common Stock that are
restricted stock units within the meaning of the applicable Thermo
Electron Stock Plan ("Thermo Electron Restricted Stock Units") granted
under a Thermo Electron Stock Plan, complete and correct copies of which,
in each case as amended, have been filed as exhibits to the Thermo
Electron SEC Documents (as defined in Section 3.2(d)(i)) prior to the date
of this Agreement or made available to Fisher. Each outstanding share of
capital stock of Thermo Electron is duly authorized, validly issued, fully
paid, nonassessable and free of preemptive rights.
(ii) All shares of Thermo Electron Common Stock subject to
issuance under the Thermo Electron Stock Plans and the Thermo Electron
Employee Stock Purchase Plan (the "Thermo Electron Purchase Plan"), upon
issuance on the terms and conditions specified in the instruments pursuant
to which they are issuable, will be duly authorized, validly issued, fully
paid and nonassessable and free of preemptive rights.
(iii) No Voting Debt of Thermo Electron is issued or
outstanding as of the date hereof.
(iv) As of May 1, 2006, there are no securities, options,
warrants, calls, rights, commitments, agreements, arrangements or
undertakings of any kind to which Thermo Electron or any of its
Subsidiaries is a party or by which any of them is bound obligating Thermo
Electron or any of its Subsidiaries to issue, deliver or sell, or cause to
be issued, delivered or sold, additional shares of capital stock, Voting
Debt or other voting securities of Thermo Electron or any of its
Subsidiaries, or obligating Thermo Electron or any of its Subsidiaries to
issue, grant, extend or enter into any such security, option, warrant,
call, right, commitment, agreement, arrangement or undertaking. All
outstanding shares of Thermo Electron Common Stock, all outstanding Thermo
Electron Options and all outstanding shares of capital stock of each
Subsidiary of Thermo Electron have been issued and granted in compliance
in all material respects with (A) all applicable securities laws and all
other Applicable Laws and (B) all requirements set forth in applicable
material Contracts.
(v) Since December 31, 2005, and through the date hereof,
other than (A) issuances of Thermo Electron Common Stock pursuant to the
exercise of Thermo Electron Options granted under Thermo Electron Stock
Plans, (B) issuances of
-33-
Thermo Electron Common Stock pursuant to the Thermo Electron Purchase
Plan, (C) repurchases of Thermo Electron Common Stock from employees of
Thermo Electron following their termination pursuant to the terms of their
pre-existing stock option or purchase agreements, (D) issuances of Thermo
Electron Common Stock (consisting of newly-issued shares or shares in
treasury) as contributions of Thermo Electron Common Stock to defined
contribution plans sponsored by Thermo Electron and (E) grants of Thermo
Electron Options or stock awards under Thermo Electron Stock Plans, there
has been no increase in (1) the outstanding capital stock of Thermo
Electron, (2) the number of Thermo Electron Options outstanding or (3) the
number of other options, restricted stock awards, warrants or other rights
to purchase Thermo Electron capital stock.
(vi) Neither Thermo Electron nor any of its Subsidiaries is a
party to any currently effective agreement (A) restricting the purchase or
transfer of, (B) relating to the voting of, (C) requiring the repurchase,
redemption or disposition of, or containing any right of first refusal
with respect to, (D) requiring registration of or (E) granting any
preemptive or antidilutive rights with respect to any capital stock of
Thermo Electron or any of its Subsidiaries or any securities of the type
referred to in Section 3.2(b)(iv) hereof.
(vii) Other than in Subsidiaries of Thermo Electron, as of
the date hereof, neither Thermo Electron nor its Subsidiaries directly or
indirectly beneficially owns any securities or other beneficial ownership
interests in any other entity except for non-controlling investments in
entities with an individual book value of less than $5,000,000 and which
are not individually or in the aggregate material to Thermo Electron and
its Subsidiaries, taken as a whole. There are no outstanding contractual
obligations of Thermo Electron or any of its Subsidiaries to make any loan
to, or any equity or other investment (in the form of a capital
contribution or otherwise) in, any Subsidiary of Thermo Electron or any
other Person, other than guarantees by Thermo Electron of any indebtedness
or other obligations of any wholly-owned Subsidiary of Thermo Electron and
other than loans made in the ordinary course consistent with past practice
to employees of Thermo Electron and its Subsidiaries.
(viii) The authorized capital stock of Merger Sub consists of
1,000 shares of common stock, par value $.01 per share, all of which
shares are issued and outstanding. Thermo Electron is the legal and
beneficial owner of all of the issued and outstanding shares of Merger
Sub. Merger Sub was formed at the direction of Thermo Electron prior to
the date hereof, solely for the purposes of effecting the Merger and the
other transactions contemplated hereby. Except as required by or provided
for in this Agreement, Merger Sub (x) does not hold, nor has it held, any
assets, (y) does not have, nor has it incurred, any liabilities and (z)
has not carried on any business activities other than in connection with
the Merger and the transactions contemplated hereby. All of the
outstanding shares of capital stock of Merger Sub have been duly
authorized and validly issued, and are fully paid and nonassessable and
not subject to any preemptive rights.
(ix) Neither Thermo Electron nor any of its Subsidiaries own
any shares of capital stock of Fisher or any of its Subsidiaries. Neither
Thermo Electron
-34-
nor Merger Sub is, or will become prior to the Effective Time, an
"interested stockholder" with respect to Fisher within the meaning of
Section 203 of the DGCL.
(c) Authority; Board Approval; Voting Requirements; No Conflict;
Required Filings and Consents.
(i) Authority. Each of Thermo Electron and Merger Sub has all
requisite corporate power and authority to enter into this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by
Thermo Electron and Merger Sub, and the consummation by Thermo Electron
and Merger Sub of the transactions contemplated hereby, have been duly and
validly authorized by all necessary corporate action on the part of Thermo
Electron and Merger Sub, and no other corporate proceedings on the part of
Thermo Electron and Merger Sub and no stockholder votes are necessary to
authorize this Agreement or to consummate the transactions contemplated
hereby, other than, with respect to the issuance of shares of Thermo
Electron Common Stock (as defined in Section 2.1) in connection with the
Merger (the "Stock Issuance"), and the amendment of the Thermo Electron
Charter (as defined in Section 3.2(a)(ii)), to increase the authorized
number of shares of Thermo Electron Common Stock from 350,000,000 to 1.2
billion (or such larger amount as the parties may mutually agree), to make
such increase to the authorized preferred stock as the parties may
mutually determine, and change the name of Thermo Electron to Thermo
Fisher Scientific Inc. (the "Charter Amendment"), the Thermo Electron
Stockholder Approval (as defined in Section 3.2(c)(iii)). This Agreement
has been duly executed and delivered by Thermo Electron and Merger Sub.
Assuming the due authorization, execution and delivery of this Agreement
by Fisher, this Agreement constitutes the legal, valid and binding
obligation of each of Thermo Electron and Merger Sub, enforceable against
Thermo Electron and Merger Sub in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting the rights and remedies of creditors
generally and to general principles of equity (regardless of whether
considered in a proceeding in equity or at law).
(ii) Board Approval. The Board of Directors of Thermo
Electron has (A) determined that this Agreement, the Merger, the Stock
Issuance and the Charter Amendment are advisable and fair to and in the
best interests of Thermo Electron and its stockholders, (B) duly approved
and adopted this Agreement, the Merger, the Stock Issuance, the Charter
Amendment and the other transactions contemplated hereby, which adoption
has not been rescinded or modified, (C) resolved to recommend this
Agreement and the Merger to its stockholders for approval, and (D) subject
to Section 5.1(b), directed that the Stock Issuance and the Charter
Amendment be submitted to Thermo Electron's stockholders for consideration
and approval at a duly held meeting of such stockholders in accordance
with this Agreement.
(iii) Voting Requirements. The affirmative vote of holders of
a majority of the Thermo Electron Common Stock present or represented and
entitled to vote on the Stock Issuance at the Thermo Electron
Stockholders' Meeting, is the only vote of the holders of any class or
series of Thermo Electron capital stock necessary to
-35-
approve the Stock Issuance, and no other vote of the holders of any class
or series of Thermo Electron capital stock is necessary to approve the
Stock Issuance. The affirmative vote of holders of a majority of the
outstanding shares of Thermo Electron Common Stock entitled to vote on the
Charter Amendment at the Thermo Electron Stockholders' Meeting, is the
only vote of the holders of any class or series of Thermo Electron capital
stock necessary to approve the Charter Amendment, and no other vote of the
holders of any class or series of Thermo Electron capital stock is
necessary to approve the Charter Amendment.
(iv) No Conflict. Except as set forth in Section 3.2(c)(iv)
of the Thermo Electron Disclosure Schedule, the execution and delivery of
this Agreement by Thermo Electron and Merger Sub do not, and the
consummation by Thermo Electron and Merger Sub of the transactions
contemplated hereby and compliance by Thermo Electron and Merger Sub with
the provisions of this Agreement will not, conflict with, result in any
violation or breach of or default (with or without notice or lapse of
time, or both) under, require any consent, waiver or approval under, give
rise to any right of termination or cancellation or acceleration of any
right or obligation or loss of a benefit under, or result in the creation
of any Lien upon any of the properties or assets of Thermo Electron or any
of its Subsidiaries or any restriction on the conduct of Thermo Electron's
business or operations under, (A) the Thermo Electron Organizational
Documents or the Thermo Electron Subsidiary Organizational Documents, (B)
any Contract to which Thermo Electron or any Thermo Electron Subsidiary is
a party or any Thermo Electron Permit (as defined in Section 3.2(g)(i)) or
(C) subject to the governmental filings and other matters referred to in
Section 3.2(c)(v), any judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to Thermo Electron or any of its
Subsidiaries or their respective properties or assets, other than, in the
case of clauses (B) and (C), any such conflicts, violations, defaults,
rights, losses, restrictions or Liens, or failure to obtain consents,
waivers or approvals, which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Thermo
Electron and its Subsidiaries, taken as a whole.
(v) Required Filings or Consents. No consent, approval, order
or authorization or permit of, action by or in respect of, registration,
declaration or filing with, or notification to, any Governmental Entity or
any other Person is required to be made, obtained, performed or given to
or with respect to Thermo Electron or any of its Subsidiaries in
connection with the execution and delivery of this Agreement by Thermo
Electron or Merger Sub, the Stock Issuance and the Charter Amendment or
the consummation by Thermo Electron or Merger Sub of the transactions
contemplated hereby, except for:
(A) the filing of a pre-merger notification and report
form by Thermo Electron and Merger Sub under the HSR Act, all
required notifications and filings under the ECMR and any other
applicable filings or notifications under the antitrust, competition
or similar laws of any foreign jurisdiction;
(B) the filing with the SEC of:
-36-
(1) the Form S-4 (including the Joint Proxy
Statement);
(2) such reports and filings under Section 13(a),
13(d), 14(a), 15(d) or 16(a) of the Exchange Act and the rules
and regulations thereunder as may be required in connection with
this Agreement and the transactions contemplated hereby;
(C) the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware and appropriate
documents with the NYSE and the relevant authorities of other states
in which Thermo Electron or Merger Sub are qualified to do business
and such filings as may be necessary in accordance with state
securities or other "blue sky" laws;
(D) the Thermo Electron Stockholder Approval;
(E) the consents, approvals, orders or authorizations set
forth in Section 3.2(c)(v)(E) of the Thermo Electron Disclosure
Schedule;
(F) other such consents, approvals, orders or
authorizations, the failure of which to be made or obtained,
individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect on Thermo Electron and its
Subsidiaries, taken as a whole, or Merger Sub; and
(G) the filing of the Charter Amendment with the
Secretary of State of the State of Delaware.
(d) SEC Documents; Financial Statements.
(i) Thermo Electron has filed with the SEC all registration
statements, prospectuses, reports, schedules, forms, statements,
certifications and other documents (including exhibits and all other
information incorporated by reference therein) presently required to be so
filed by Thermo Electron since January 1, 2004 (excluding the Form S-4 and
the Joint Proxy Statement, the "Thermo Electron SEC Documents"). As of
their respective dates, the Thermo Electron SEC Documents complied in all
material respects with the requirements of the Securities Act or the
Exchange Act, as the case may be, to the extent in effect, SOX and the
rules and regulations of the SEC promulgated thereunder applicable to such
Thermo Electron SEC Documents, and none of the Thermo Electron SEC
Documents, when filed, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except to the
extent corrected by a subsequently filed Thermo Electron SEC Document
filed with the SEC prior to the date hereof. No Subsidiary of Thermo
Electron is subject to the periodic reporting requirements of the Exchange
Act.
(ii) Each of the principal executive officer of Thermo
Electron and the principal financial officer of Thermo Electron (or each
former principal executive
-37-
officer of Thermo Electron and each former principal financial officer of
Thermo Electron, as applicable) has made all certifications required by
Rule 13a-14 or 15d-14 under the Exchange Act or Sections 302 and 906 of
SOX and the rules and regulations of the SEC promulgated thereunder with
respect to the Thermo Electron SEC Documents. For purposes of the
preceding sentence, "principal executive officer" and "principal financial
officer" shall have the meanings given to such terms in SOX. Neither
Thermo Electron nor any of its Subsidiaries has outstanding, or has
arranged any outstanding, "extensions of credit" to directors or executive
officers within the meaning of Section 402 of SOX.
(iii) The financial statements of Thermo Electron included in
the Thermo Electron SEC Documents, including each Thermo Electron SEC
Document filed after the date hereof until the Effective Time, comply, as
of their respective dates of filing with the SEC, in all material respects
with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, have been prepared in
accordance with GAAP (except, in the case of unaudited statements, as
permitted by Form 10-Q or 8-K or other applicable rules of the SEC)
applied on a consistent basis during the periods involved (except as may
be indicated in the notes thereto) and fairly present the consolidated
financial position of Thermo Electron and its consolidated Subsidiaries as
of the dates thereof and the consolidated results of their operations and
cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments which are not material).
The financial books and records of Thermo Electron and its Subsidiaries,
taken as a whole, are true and correct in all material respects.
(iv) Except as reflected or reserved against in the balance
sheet of Thermo Electron, dated December 31, 2005, included in the Form
10-K filed by Thermo Electron with the SEC on March 2, 2006 (including the
notes thereto, the "Thermo Electron Balance Sheet") and except as set
forth in Section 3.2(d)(iv) of the Thermo Electron Disclosure Schedule,
neither Thermo Electron nor any of its Subsidiaries has any liabilities or
obligations of any nature (whether absolute, accrued, known or unknown,
contingent or otherwise) nor, to the Knowledge (as defined in Section
8.3(h)) of Thermo Electron, does any basis exist therefor, other than
liabilities or obligations that (A) were incurred since January 1, 2006 in
the ordinary course of business consistent with past practice and
individually or in the aggregate, have not had and would not reasonably be
expected to have a Material Adverse Effect on Thermo Electron and its
Subsidiaries, taken as a whole, (B) individually or in the aggregate, have
not had and would not reasonably be expected to have a Material Adverse
Effect on Thermo Electron and its Subsidiaries, taken as a whole or (C)
were incurred pursuant to this Agreement or the transactions contemplated
hereby.
(v) Neither Thermo Electron nor any of its Subsidiaries is a
party to, or has any commitment to become a party to, any joint venture,
off-balance sheet partnership or any similar contract or arrangement
(including without limitation any contract or arrangement relating to any
transaction or relationship between or among Thermo Electron and any of
its Subsidiaries, on the one hand, and any unconsolidated Affiliate,
including without limitation any structured finance, special purpose or
limited
-38-
purpose entity or Person, on the other hand, or any "off-balance sheet
arrangement" (as defined in Item 303(a) of Regulation S-K of the SEC)),
where the result, purpose or intended effect of such contract or
arrangement is to avoid disclosure of any material transaction involving,
or material liabilities of, Thermo Electron or any of its Subsidiaries in
Thermo Electron's or such Subsidiary's published financial statements or
other Thermo Electron SEC Documents.
(vi) No "material contract" (as such term is defined in Item
601(b)(10) of Regulation S-K of the SEC) filed as an exhibit to the Thermo
Electron Form 10-K has been amended or modified, except for amendments or
modifications which have been filed as an exhibit to a subsequently dated
Thermo Electron SEC Document or are not required to be filed with the SEC.
(e) Information Supplied. None of the information supplied or to
be supplied by or on behalf of Thermo Electron or Merger Sub for inclusion or
incorporation by reference in (i) the Form S-4 will, at the time the Form S-4
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or (ii) the Joint
Proxy Statement will, at the date it is first mailed to Thermo Electron's
stockholders or at the time of the Thermo Electron Stockholders' Meeting,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. The Joint Proxy Statement and the Form S-4 will comply as to form in
all material respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations thereunder. Notwithstanding the
foregoing provisions of this Section 3.2(e), no representation or warranty is
made by Thermo Electron with respect to information or statements made or
incorporated by reference in the Form S-4 or the Joint Proxy Statement which
were not supplied by or on behalf of Thermo Electron.
(f) Absence of Certain Changes or Events.
(i) Since January 1, 2006 through the date hereof, except as
and to the extent disclosed in the Thermo Electron SEC Documents filed
prior to the date of this Agreement and except for liabilities incurred
pursuant to this Agreement or the transactions contemplated hereby:
(A) Thermo Electron and its Subsidiaries have conducted
their business only in the ordinary course consistent with past
practice;
(B) there has not been any split, combination or
reclassification of any of Thermo Electron's capital stock or any
declaration, setting aside or payment of any dividend on, or other
distribution (whether in cash, stock or property) in respect of, in
lieu of or in substitution for, shares of Thermo Electron's capital
stock;
-39-
(C) except as required by a change in GAAP, there has not
been any change in accounting methods, principles or practices by
Thermo Electron; and
(D) there has not been any action taken by Thermo
Electron or any of its Subsidiaries that, if taken during the period
from the date of this Agreement through the Effective Time, would
constitute a breach of Section 4.1(a), other than actions in
connection with entering into this Agreement.
(ii) Since January 1, 2006 through the date hereof, there
have not been any changes, circumstances or events that, individually or
in the aggregate, have had, or would reasonably be expected to have, a
Material Adverse Effect on Thermo Electron and its Subsidiaries, taken as
a whole, or Merger Sub.
(g) Compliance with Applicable Laws; Permits; Litigation.
(i) Thermo Electron, its Subsidiaries and employees hold all
authorizations, permits, licenses, certificates, easements, concessions,
franchises, variances, exemptions, orders, consents, registrations,
approvals and clearances of all Governmental Entities (including all
authorizations under the FDCA, and the regulations of the FDA promulgated
thereunder) and third Persons which are required for Thermo Electron and
its Subsidiaries to own, lease and operate its properties and other assets
and to carry on their respective businesses in the manner described in the
Thermo Electron SEC Documents filed prior to the date hereof and as they
are being conducted as of the date hereof (the "Thermo Electron Permits"),
and all Thermo Electron Permits are valid and in full force and effect,
except where the failure to have, or the suspension or cancellation of, or
the failure to be valid or in full force and effect of, any such Thermo
Electron Permits, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect on Thermo Electron and its
Subsidiaries, taken as a whole.
(ii) Thermo Electron and its Subsidiaries are, and have been
at all times since January 1, 2004, in compliance with the terms of the
Thermo Electron Permits and all Applicable Laws relating to Thermo
Electron and its Subsidiaries or their respective businesses, assets or
properties, except where the failure to be in compliance with the terms of
the Thermo Electron Permits or such Applicable Laws, individually or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect on Thermo Electron and its Subsidiaries, taken as a whole. Since
January 1, 2004, neither Thermo Electron nor any of its Subsidiaries has
received any written notification from any Governmental Entity (A)
asserting that Thermo Electron or any of its Subsidiaries is not in
compliance with, or at any time since such date has failed to comply with,
Applicable Laws (except for any such lack of compliance which,
individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect on Thermo Electron and its Subsidiaries, taken
as a whole) or (B) threatening to revoke any Thermo Electron Permit
(except for any such revocation which, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect on
Thermo Electron and its Subsidiaries, taken as a whole) nor, to the
Knowledge of Thermo
-40-
Electron, does any basis exist therefor. As of the date hereof, no
investigation or review by any Governmental Entity is pending or, to the
Knowledge of Thermo Electron, has been threatened in writing against
Thermo Electron or any of its Subsidiaries, which, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect
on Thermo Electron and its Subsidiaries, taken as a whole.
(iii) Thermo Electron is, and has been, in compliance in all
material respects with the provisions of SOX applicable to it.
(iv) Except as and to the extent disclosed in the Thermo
Electron SEC Documents filed prior to the date of this Agreement,
including the notes to the financial statements included therein, no
action, audit, demand, claim, suit, proceeding, requirement or
investigation by any Governmental Entity, and no suit, action, mediation,
arbitration or proceeding by any Person, against or affecting Thermo
Electron or any of its Subsidiaries or any of their respective properties,
including Intellectual Property, is pending or, to the Knowledge of Thermo
Electron, threatened which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect on Thermo
Electron and its Subsidiaries, taken as a whole, or Merger Sub.
(v) Neither Thermo Electron nor any of its Subsidiaries is,
or at any time since January 1, 2004 has been, subject to any outstanding
order, injunction or decree which, individually or in the aggregate, has
had or would reasonably be expected to have a Material Adverse Effect on
Thermo Electron and its Subsidiaries, taken as a whole.
(h) Labor and Other Employment Matters.
(i) Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on Thermo
Electron and its Subsidiaries, taken as a whole, (A) no work stoppage,
slowdown, lockout, labor strike, material arbitrations or other material
labor disputes against Thermo Electron or any of its Subsidiaries are
pending or, to the Knowledge of Thermo Electron, threatened, (B) no unfair
labor practice charges, grievances or complaints are pending or, to the
Knowledge of Thermo Electron, threatened against Thermo Electron or any of
its Subsidiaries, (C) neither Thermo Electron nor any of its Subsidiaries
is delinquent in payments to any of its employees for any wages, salaries,
commissions, bonuses or other direct compensation for any services
performed for it or amounts required to be reimbursed to such employees,
(D) neither Thermo Electron nor any of its Subsidiaries is liable for any
payment to any trust or other fund or to any Governmental Entity, with
respect to unemployment compensation benefits, social security or other
benefits or obligations for employees, (E) no employee of Thermo Electron
at the officer level or above has given written notice to Thermo Electron
or any of its Subsidiaries that any such employee intends to terminate his
or her employment with Thermo Electron or any of its Subsidiaries, (F) to
the Knowledge of Thermo Electron, no employee of Thermo Electron or any of
its Subsidiaries is in any respect in violation of any term of any
employment contract, nondisclosure agreement, common law nondisclosure
obligations, non-
-41-
competition agreement, or any restrictive covenant to a former employer
relating to the right of any such employee to be employed by Thermo
Electron or any of its Subsidiaries because of the nature of the business
conducted or presently proposed to be conducted by Thermo Electron or any
of its Subsidiaries or to the use of trade secrets or proprietary
information of others,(G) neither Thermo Electron nor any of its
Subsidiaries is a party to, or otherwise bound by, any consent decree
with, or citation by, any Governmental Entity relating to employees or
employment practices and (H) Thermo Electron and its Subsidiaries are in
compliance with all Applicable Laws, agreements, contracts, policies,
plans and programs relating to employment, employment practices,
compensation, benefits, hours, terms and conditions of employment and the
termination of employment, including but not limited to any obligations
pursuant to the WARN Act, or any comparable Applicable Law.
(ii) As of the date hereof,
(A) neither Thermo Electron nor any of its Subsidiaries
is a party to, or otherwise bound by, any collective bargaining
agreement or any other agreement, work rules or practices with a
labor union, labor organization or works council, which, in the case
of any non-U.S. agreement, work rules or practices with a labor
union, labor organization or works council are material to Thermo
Electron and its Subsidiaries, taken as a whole, nor are any such
agreements, work rules or practices presently being negotiated;
(B) no employee of Thermo Electron or any of its
Subsidiaries is represented by any labor union, labor organization
or works council in his or her capacity as an employee of Thermo
Electron or any of its Subsidiaries;
(C) no labor union, labor organization or works council
or group of employees of Thermo Electron or any of its Subsidiaries
has made a pending demand for recognition or certification to Thermo
Electron or any of its Subsidiaries, and there are no representation
or certification proceedings or petitions seeking a representation
proceeding presently pending or, to the Knowledge of Thermo
Electron, threatened to be brought or filed with the NLRB or any
other comparable foreign, state or local labor relations tribunal or
authority; and
(D) to the Knowledge of Thermo Electron, no labor union,
labor organization or works council is seeking to organize or
represent any employees of Thermo Electron or any of its
Subsidiaries.
(i) Benefit Plans.
(i) Section 3.2(i)(i)(A) of the Thermo Electron Disclosure
Schedule sets forth a true and complete list of each material Benefit Plan
as of the date hereof with or for the benefit of any current or former
employee, officer or director of Thermo Electron or any of its
Subsidiaries or ERISA Affiliates or with respect to which
-42-
Thermo Electron or any of its Subsidiaries or ERISA Affiliates have any
material obligations or liabilities, including each material Benefit Plan
that has been adopted or maintained by Thermo Electron, any of its
Subsidiaries or any Affiliate, whether formally or informally, or with
respect to which Thermo Electron, any of its Subsidiaries or any Affiliate
will or may have any material liability, for the benefit of employees or
consultants of Thermo Electron or any of its Subsidiaries who perform
services outside the United States (collectively, the "Thermo Electron
Benefit Plans"). With respect to the Thermo Electron Benefit Plans, no
event has occurred, and there exists no condition or set of circumstances,
which would reasonably be expected to have a Material Adverse Effect on
Thermo Electron and its Subsidiaries, taken as a whole, under ERISA, the
Code or any other Applicable Laws. Neither Thermo Electron, nor any of its
Subsidiaries, nor, to the Knowledge of Thermo Electron, any other Person,
has any express commitment, whether legally enforceable or not, to modify,
change or terminate any Thermo Electron Benefit Plan, other than with
respect to a modification, change or termination required by ERISA or the
Code, or any other Applicable Law or administrative changes that do not
increase the liabilities or obligations under any such plans. Thermo
Electron has delivered or made available to Fisher true, correct and
complete copies of all Thermo Electron Benefit Plans and, with respect
thereto, if applicable, all amendments, trust agreements, insurance
contracts, other funding vehicles, determination letters issued by the
IRS, the most recent annual reports (Form 5500 series) filed with the IRS
and the most recent actuarial report or other financial statement relating
to such Thermo Electron Benefit Plan.
(ii) Each Thermo Electron Benefit Plan has been, in all
material respects, administered and operated in accordance with its terms,
with the applicable provisions of ERISA, the Code and other Applicable
Laws and with the terms of all applicable collective bargaining
agreements. Each Thermo Electron Benefit Plan, including any material
amendments thereto, that is required to obtain Approval has received such
Approval (or there remains a period of time in which to obtain such
Approval retroactive to the date of any material amendment that has not
previously received such Approval), and no event has occurred which would
reasonably be expected to result in the revocation of such Approval or the
imposition of material sanctions by such authorities. Without limiting the
generality of the foregoing, each Thermo Electron Benefit Plan that is
intended to be qualified under Section 401(a) of the Code has obtained a
favorable determination letter from the IRS that the Thermo Electron
Benefit Plan is so qualified and all related trusts are exempt from U.S.
federal income taxation under Section 501(a) of the Code, and, to the
Knowledge of Thermo Electron, nothing has occurred, whether by action or
by failure to act, which would reasonably be expected to cause the loss of
such qualification or exemption.
(iii) As of the date hereof to the Knowledge of Thermo
Electron, no oral or written representation or commitment with respect to
any material aspect of any Thermo Electron Benefit Plan has been made to
an employee or former employee of Thermo Electron or any of its
Subsidiaries by an authorized Thermo Electron employee that is not
materially in accordance with the written or otherwise pre-existing terms
and provisions of such Thermo Electron Benefit Plans. As of the date
hereof, to the Knowledge of Thermo Electron, neither Thermo Electron nor
any of its
-43-
Subsidiaries has entered into any agreement, arrangement or understanding,
whether written or oral, with any trade union, works council or other
employee representative body or any material number or category of its
employees which would prevent, restrict or materially impede the
implementation of any layoff, redundancy, severance or similar program
within its or their respective workforces (or any part of them).
(iv) There are no material unresolved claims or disputes
under the terms of, or in connection with, any Thermo Electron Benefit
Plan (other than routine undisputed claims for benefits), and no action,
legal or otherwise, has been commenced or threatened with respect to any
material claim or otherwise in connection with a Thermo Electron Benefit
Plan.
(v) With respect to each Funded Retirement Plan of Thermo
Electron or any of its Subsidiaries, the aggregate fair market value of
the assets of such Funded Retirement Plan was, as of the most recently
computed actuarial valuation of such plan, equal to or greater than the
aggregate value of its liabilities assessed on an ongoing basis and
calculated in accordance with the actuarial methods and assumptions used
in such valuation pursuant to such Funded Retirement Plan and Applicable
Law and GAAP. None of Thermo Electron or any ERISA Affiliate of Thermo
Electron has incurred, or is reasonably expected to incur, any liability
to a Funded Retirement Plan under Title IV of ERISA (other than for
contributions not yet due) or to the Pension Benefit Guaranty Corporation
(other than for payment of premiums not yet due) that, when aggregated
with other such liabilities, would reasonably be expected to result in a
material liability of Thermo Electron and its Subsidiaries, taken as a
whole, which liability has not been fully paid.
(vi) Section 3.1(i)(vi) of the Thermo Electron Disclosure
Schedule sets forth a true and complete list of each Multiemployer Plan to
which Thermo Electron or any ERISA Affiliate of Thermo Electron
contributes or is required to contribute, or to which, or with respect to
which, Thermo Electron or any ERISA Affiliate of Thermo Electron has any
material liability. If any Thermo Electron Multiemployer Plan is subject
to Title IV of ERISA, then, (A) neither Thermo Electron nor any ERISA
Affiliate of Thermo Electron has made or suffered a "complete withdrawal"
or a "partial withdrawal," as such terms are respectively defined in
Sections 4203 and 4205 of ERISA (or any liability resulting therefrom has
been satisfied in full), (B) no event has occurred that presents a
material risk of a complete or partial withdrawal, (C) neither Thermo
Electron nor any ERISA Affiliate of Thermo Electron has any contingent
liability under Section 4204 of ERISA, (D) no circumstances exist that
present a material risk that any such plan will go into reorganization,
and (E) to the best of Thermo Electron's Knowledge, the aggregate
withdrawal liability of Thermo Electron and each ERISA Affiliate of Thermo
Electron computed as if a complete withdrawal by Thermo Electron and any
ERISA Affiliate of Thermo Electron had occurred under each such Thermo
Electron Benefit Plan on the date hereof, would not reasonably be expected
to result in a material liability to Thermo Electron. No Thermo Electron
Benefit Plan subject to ERISA is a plan that has two or more contributing
sponsors at least two of whom are not under common control, within the
meaning of Section 4063 of ERISA.
-44-
(vii) No Thermo Electron Benefit Plan provides health
benefits (whether or not insured) with respect to employees or former
employees of Thermo Electron or any of its Subsidiaries after retirement
or other termination of service (other than coverage mandated by
Applicable Laws or benefits, the full cost of which is borne by the
employee or former employee).
(viii) Neither the negotiation and execution of this
Agreement nor the consummation of the transactions contemplated hereby
will (either alone or upon the occurrence of any additional or subsequent
events) constitute an event under any Thermo Electron Benefit Plan (for
this purpose, Thermo Electron Benefit Plan (other than with respect to
those Plans that are Thermo Electron Foreign Plans) shall be determined
without regard to whether any plan, agreement, policy, understanding or
arrangement is material despite the use of such qualifier in Section
3.1(i)(i) for purposes of the definition of Benefit Plan and Section
3.2(i)(i) for purposes of the definition of Thermo Electron Benefit Plan)
that will or may result in any payment (whether of severance pay or
otherwise), acceleration of payment, forgiveness of indebtedness, vesting,
distribution, increase in benefits or obligation to fund benefits with
respect to any employee or former employee of Thermo Electron or any of
its Subsidiaries or limit the ability to amend, terminate or receive a
reversion of assets from any Thermo Electron Benefit Plan or related
trust. There is no contract, agreement, plan or arrangement with an
employee or former employee of Thermo Electron to which Thermo Electron or
any of its Subsidiaries is a party as of the date of this Agreement that,
individually or collectively and as a result of the transaction
contemplated hereby (whether alone or upon the occurrence of any
additional or subsequent events) would reasonably be expected to give rise
to the payment of any amount that would not be deductible pursuant to
Sections 280G or 162(m) of the Code.
(ix) Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on Thermo
Electron and its Subsidiaries, taken as a whole, with respect to each
Thermo Electron Benefit Plan established or maintained outside of the
United States for the benefit of employees of Thermo Electron or any
Subsidiary of Thermo Electron residing outside the United States (each, a
"Thermo Electron Foreign Plan"): (i) each Thermo Electron Foreign Plan is
in compliance with the applicable provisions of the laws and regulations
regarding employee benefits, mandatory contributions and retirement plans
of each jurisdiction applicable to such Thermo Electron Foreign Plan; (ii)
each Thermo Electron Foreign Plan required to be registered has been
registered and has been maintained in good standing with applicable
regulatory authorities and (iii) the fair market value of the assets of
each funded Thermo Electron Foreign Plan, the liability of each insurer
for any Thermo Electron Foreign Plan funded through insurance or the book
reserve established for any Thermo Electron Foreign Plan, together with
any accrued contributions, is sufficient to procure or provide for the
accrued benefit obligations, as of the Closing Date, with respect to all
current and former participants in such plan according to the actuarial
assumptions and valuations most recently used to determine employer
contributions to such Thermo Electron Foreign Plan and no transaction
contemplated by this Agreement shall cause such assets or insurance
obligations to be less than such benefit obligations, and any and all
amounts required to be accrued with respect to any Thermo Electron
-45-
Foreign Plan or pursuant to any statutory requirements pertaining to
employee benefits, mandatory contributions, retirement plans or similar
benefits, have been properly and timely accrued, including accruals
relating to any severance, termination pay or profit sharing benefits.
(j) Taxes. Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on Thermo Electron and
its Subsidiaries, taken as a whole:
(i) Each of Thermo Electron and its Subsidiaries has (A) duly
and timely filed (or there have been filed on its behalf) all Tax Returns
required to be filed by it (taking into account all applicable extensions)
with the appropriate Tax Authority and all such Tax Returns are true,
correct and complete, (B) timely paid in full all Taxes required to be
paid by it, (C) made adequate provision in accordance with GAAP (or
there has been paid or provision has been made on its behalf) for the
payment of all Taxes not yet due and (D) complied with all Applicable Laws
relating to the payment and withholding of Taxes.
(ii) There are no Liens for Taxes upon any property or assets
of Thermo Electron or any of its Subsidiaries, except for Liens for Taxes
not yet due and payable or for which adequate reserves have been provided
in accordance with GAAP in the most recent financial statements contained
in the Thermo Electron SEC Documents filed prior to the date of this
Agreement.
(iii) The most recent financial statements contained in the
Thermo Electron SEC Documents reflect an adequate (A) reserve in
accordance with GAAP for all Tax liabilities of Thermo Electron and its
Subsidiaries for all taxable periods and portions thereof accrued through
the date of such financial statements and (B) valuation allowance in
accordance with GAAP for all deferred tax assets of Thermo Electron and
its Subsidiaries for all taxable periods and portions thereof accrued
through the date of such financial statements.
(iv) There is no audit, examination, deficiency, refund
litigation, proposed adjustment or matter in controversy with respect to
any Taxes or Tax Return of Thermo Electron or any of its Subsidiaries.
Neither Thermo Electron nor any of its Subsidiaries has received written
notice of any claim made by a Governmental Entity in a jurisdiction where
Thermo Electron or any of its Subsidiaries, as applicable, does not file a
Tax Return, that Thermo Electron or such Subsidiary is or may be subject
to taxation by that jurisdiction.
(v) The Tax Returns of Thermo Electron and each of its
Subsidiaries, including any predecessors thereof, have been examined by
the applicable Tax Authority (or the applicable statutes of limitations
for the assessment of income Taxes for such periods have expired) for all
periods through and including December 31, 2000, and no deficiencies were
asserted as a result of such examinations which have not been resolved and
fully paid or accrued as a liability on the most recent financial
statements contained in the Thermo Electron SEC Documents.
-46-
(vi) There are no outstanding requests, agreements, consents
or waivers to extend the statutory period of limitations applicable to the
assessment of any Taxes or deficiencies against Thermo Electron or any of
its Subsidiaries, and no power of attorney granted by either Thermo
Electron or any of its Subsidiaries with respect to any Taxes is currently
in force.
(vii) Neither Thermo Electron nor any of its Subsidiaries is
a party to any agreement providing for the allocation, indemnification or
sharing of Taxes (other than any agreements solely between or among Thermo
Electron and its Subsidiaries), and neither Thermo Electron nor any of its
Subsidiaries (A) has been a member of an affiliated group (or similar
state, local or foreign filing group) filing a consolidated income Tax
Return (other than a group the common parent of which is Thermo Electron)
or (B) has any liability for the Taxes of any Person (other than Thermo
Electron or any of its Subsidiaries) under Treasury Regulation ss.
1.1502-6 (or any similar provision of state, local or foreign law), as a
transferee or successor, by contract or otherwise.
(viii) Neither Thermo Electron nor any of its Subsidiaries
has (A) agreed to make nor is it required to make any material adjustment
under Section 481(a) of the Code by reason of a change in accounting
method or otherwise; or (B) constituted either a "distributing
corporation" or a "controlled corporation" (within the meaning of Section
355(a)(1)(A) of the Code) in a distribution of stock qualifying for
tax-free treatment under Section 355 of the Code (1) in the two years
prior to the date of this Agreement or (2) in a distribution which could
otherwise constitute part of a "plan" or "series of related transactions"
(within the meaning of Section 355(e) of the Code) in connection with the
Merger.
(ix) Thermo Electron is not, and has not been, a United
States real property holding corporation (as defined in Section 897(c)(2)
of the Code) during the applicable period specified in Section
897(c)(1)(A)(ii) of the Code.
(x) No closing agreements, private letter rulings, technical
advice memoranda or similar agreements or rulings have been entered into
or issued by any Tax Authority with respect to Thermo Electron or any of
its Subsidiaries within five years of the date of this Agreement, and no
such agreement or ruling has been applied for and is currently pending.
(k) Interested Party Transactions. Since the date of the Thermo
Electron Balance Sheet, no event has occurred that would be required to be
reported as a Certain Relationship or Related Transaction pursuant to Statement
of Financial Accounting Standards No. 57 or Item 404 of Regulation S-K of the
SEC.
(l) Environmental Matters. Except as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect on
Thermo Electron and its Subsidiaries, taken as a whole, (i) the operations of
Thermo Electron and its Subsidiaries are, and at all times since January 1, 2004
have been, in compliance with all applicable Environmental Laws, including
possession and compliance with the terms of all licenses,
-47-
permits, registrations, approvals, certifications and consents required by
Environmental Laws, (ii) there are no pending or, to the Knowledge of Thermo
Electron, threatened suits, actions, investigations or proceedings under or
pursuant to Environmental Laws against Thermo Electron or any of its
Subsidiaries or involving any real property currently or, to the Knowledge of
Thermo Electron, formerly owned, operated or leased or other sites at which
Hazardous Materials were disposed of, or allegedly disposed of, by Thermo
Electron or any of its Subsidiaries, (iii) Thermo Electron and its Subsidiaries
are not subject to and have received no written allegations of any Environmental
Liabilities, and no facts, circumstances or conditions relating to, arising
from, associated with or attributable to any real property currently or, to the
Knowledge of Thermo Electron, formerly owned, operated or leased by Thermo
Electron or any of its Subsidiaries or operations thereon has resulted in or
would reasonably be expected to result in Environmental Liabilities, and (iv)
all real property owned or operated by Thermo Electron or any of its
Subsidiaries is free of contamination from Hazardous Materials that would have
an adverse effect on human health or the environment.
(m) Intellectual Property. Except as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect on
Thermo Electron and its Subsidiaries, taken as a whole, (i) Thermo Electron or a
Subsidiary of Thermo Electron (A) owns and is listed in the records of the
appropriate United States, state or foreign registry as the current owner of
record for each application and registration of Intellectual Property or (B) has
a legally enforceable right to use (in each case, free and clear of any Liens)
all Intellectual Property used in or necessary for the conduct of its business
as currently conducted, including without limitation all patents and patent
applications and all trademark registrations and trademark applications; (ii)
except as set forth in Section 3.2(m)(ii) of the Thermo Electron Disclosure
Schedule, to the Knowledge of Thermo Electron, the conduct of the business of
Thermo Electron and its Subsidiaries as currently conducted does not infringe on
or misappropriate, either directly or indirectly (such as through contributory
infringement or inducement to infringe), the Intellectual Property rights of any
Person, and the use by Thermo Electron or any of its Subsidiaries of any
Intellectual Property is, to the Knowledge of Thermo Electron, in accordance
with any applicable grant, license, agreement, instrument or other arrangement
pursuant to which Thermo Electron or any Affiliate acquired the right to use
such Intellectual Property; (iii) to the Knowledge of Thermo Electron, no Person
is misappropriating, infringing, diluting or otherwise violating any right of
Thermo Electron or any of its Subsidiaries with respect to any Intellectual
Property owned or used by Thermo Electron or any of its Subsidiaries, and no
such claims, suits, arbitrations or other adversarial proceedings have been
brought or threatened against any Person by Thermo Electron or any of its
Subsidiaries; (iv) to the Knowledge of Thermo Electron, except as set forth in
Section 3.2(m)(iv) of the Thermo Electron Disclosure Schedule, neither Thermo
Electron nor any of its Subsidiaries has received written notice by any Person
of any pending or threatened claim, suit, action, mediation, arbitration, order
or other adversarial proceeding (A) alleging infringement (or other violation)
by Thermo Electron or any of its Subsidiaries of Intellectual Property or other
rights of any Person or (B) challenging Thermo Electron's or any of its
Subsidiaries' ownership or use of, or the validity, enforcement, registrability
or maintenance of, any Intellectual Property owned or used by Thermo Electron or
any of its Subsidiaries, and, to the Knowledge of Thermo Electron, no
Intellectual Property owned or used by Thermo Electron or any of its
Subsidiaries is being used or enforced in a manner that would reasonably be
expected to result in the abandonment, cancellation or unenforceability of such
Intellectual Property; (v) to the Knowledge of Thermo Electron, the Intellectual
Property owned
-48-
or used by Thermo Electron or any of its Subsidiaries (A) has been duly
maintained, (B) is subsisting, in full force and effect, (C) is valid and
enforceable, (D) has not expired, been cancelled or abandoned and (E) all
maintenance, registration and renewal fees necessary to preserve the rights of
Thermo Electron in connection with such Intellectual Property have been paid in
a timely manner, and there are no actions that must be taken by Thermo Electron
or any of its Subsidiaries within 90 days from the date hereof, including the
payment of any registration, maintenance or renewal fees or the filing with the
United States Patent and Trademark Office or such other appropriate U.S. or
foreign office or similar administrative agency of documents, applications or
certificates for the purposes of obtaining, maintaining, perfecting, preserving
or renewing any rights in the registered or applied-for Intellectual Property;
(vi) to the Knowledge of Thermo Electron, except as set forth in Section
3.2(m)(vi) of the Thermo Electron Disclosure Schedule, neither Thermo Electron
nor any of its Subsidiaries has entered into any consents, judgments, orders,
indemnifications, forbearances to sue, settlement agreements, licenses or other
arrangements which (A) restrict Thermo Electron's or any of its Subsidiaries'
right to use any Intellectual Property, (B) restrict Thermo Electron's or any of
its Subsidiaries' businesses in order to accommodate a third Person's
Intellectual Property rights, (C) permit third parties to use any Intellectual
Property owned or controlled by Thermo Electron or any of its Subsidiaries or
(D) reasonably would be expected to provide a third Person a defense to patent
infringement in connection with any Intellectual Property owned or used by
Thermo Electron; (vii) to the Knowledge of Thermo Electron, Thermo Electron and
each of its Subsidiaries has used reasonable best efforts to maintain the
confidentiality of the Intellectual Property and all other property used in the
business of Thermo Electron or any of its Subsidiaries as presently conducted;
and (viii) each current and former employee of Thermo Electron or any of its
Subsidiaries who has contributed to or participated in research and development
activities will not, after giving effect to the transactions contemplated
herein, own or retain any rights to use any of the Intellectual Property owned
or used by Thermo Electron or any of its Subsidiaries. To the Knowledge of
Thermo Electron, no software used in the conduct of its business (a) contains
any device or feature designed to disrupt, disable, or otherwise impair its
functioning, or (b) is subject to the terms of any "open source" or other
similar license requiring source code of software owned by Thermo Electron to be
publicly distributed or dedicated to the public, other than any such device,
feature or license which, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect on Thermo Electron and its
Subsidiaries, taken as a whole. The consummation of the transactions
contemplated by this Agreement will not result in the loss or impairment of or
payment of any additional amounts with respect to Thermo Electron's right to
own, use, or hold for use any of the Intellectual Property owned, used, or held
for use in the conduct of its business as currently conducted other than any
such losses, impairments, payments, conflicts, or failure to obtain consents,
which, individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect on Thermo Electron and its Subsidiaries, taken as
a whole.
(n) FDA Compliance. All products currently being manufactured,
tested, developed, processed, labeled, stored or distributed by or on behalf of
Thermo Electron and its Subsidiaries, which are subject to the jurisdiction of
the FDA, are being manufactured, tested, developed, processed, labeled, stored,
distributed, and marketed and promoted, including promotions on Thermo
Electron's website, in compliance with all Applicable Laws or regulations issued
by the FDA or any other Governmental Entity, including without limitation, the
FDA's current Good Manufacturing Practice (including, but not limited to,
compliance with
-49-
corrective and preventive action requirements) and Medical Device Reporting
regulations, and recalls and corrective actions that are required to be reported
to the FDA pursuant to 21 C.F.R. Part 806 have been reported, except where any
failure to so comply would not, individually or in the aggregate, have a
Material Adverse Effect on Thermo Electron and its Subsidiaries, taken as a
whole. All applicable operations of Thermo Electron and each of its Subsidiaries
have achieved and maintained ISO 13485 Quality System certification, and there
is no pending or, to Thermo Electron's Knowledge, threatened, audit, repeal,
failure to renew or challenge to any such certifications, other than where the
failure to achieve or maintain such certification or any such audit, repeal,
failure to renew or challenge would not, individually or in the aggregate, have
a Material Adverse Effect on Thermo Electron and its Subsidiaries, taken as a
whole. All products being manufactured by Thermo Electron and its Subsidiaries
are in compliance with applicable registration and listing requirements required
by Applicable Law for each site at which a product of Thermo Electron or any of
its Subsidiaries is manufactured except where any failure to so comply would
not, individually or in the aggregate, have a Material Adverse Effect on Thermo
Electron and its Subsidiaries, taken as a whole. All pre-clinical and clinical
trials being conducted by or on behalf of Thermo Electron or any of its
Subsidiaries or that were conducted on its behalf to support FDA approvals or
clearances are being or were conducted in compliance with all Applicable Laws of
the FDA or any other Governmental Entity, including without limitation, the
applicable FDA regulations and federal and state laws, and regulations
restricting the use and disclosure of individually identifiable health
information except where any failure to so comply would not, individually or in
the aggregate, have a Material Adverse Effect on Thermo Electron and its
Subsidiaries, taken as a whole. Neither Thermo Electron nor any of its
Subsidiaries is the subject, officially or otherwise, of any pending or, to
Thermo Electron's Knowledge, threatened in writing investigation by the FDA
pursuant to its "Fraud, Untrue Statements of Material Facts, Bribery, and
Illegal Gratuities" Final Policy set forth in 56 Fed. Reg. 46191 (September 10,
1991) and any amendments thereto. To Thermo Electron's Knowledge, there is no
reasonable basis for the FDA to invoke its policy with respect to "Fraud, Untrue
Statements of Material Facts, Bribery and Illegal Gratuities" and any amendments
thereto with respect to the operations of Thermo Electron or any its
Subsidiaries that would result in any material violation of such policies. To
Thermo Electron's Knowledge, each product distributed, sold or leased, or
service rendered, by Thermo Electron or any of its Subsidiaries complies with
all applicable product safety standards of each applicable product safety
agency, commission, board or other Governmental Entity, other than where the
failure to be in compliance would not, individually or in the aggregate, have a
Material Adverse Effect on Thermo Electron and its Subsidiaries, taken as a
whole. Thermo Electron and its Subsidiaries are in compliance with all
applicable FDA import and export requirements, including, but not limited to,
import-for-export requirements, export notifications or authorizations and
record keeping requirements except as would not have, individually or in the
aggregate, a Material Adverse Effect on Thermo Electron and its Subsidiaries,
taken as a whole. All devices distributed by Thermo Electron and its
Subsidiaries have obtained any clearances or approvals required by the FDA to
market these devices, including any modifications to the devices or their
labeling, except as would not have, individually or in the aggregate, a Material
Adverse Effect on Thermo Electron and its Subsidiaries, taken as a whole.
(o) State Takeover Statutes. Thermo Electron has, or will have
prior to the Effective Time, taken all necessary action so that, assuming
compliance by Fisher with its obligations hereunder and the accuracy of the
representations and warranties made by Fisher
-50-
herein, no "business combination," "moratorium," "fair price," "control share
acquisition" or other state antitakeover statute or regulation nor any
takeover-related provision in the Thermo Electron Organizational Documents,
would (i) prohibit or restrict Thermo Electron's ability to perform its
obligations under this Agreement, any related agreement or the Certificate of
Merger or its ability to consummate the transactions contemplated hereby and
thereby, (ii) have the effect of invalidating or voiding this Agreement or the
Certificate of Merger, or any provision hereof or thereof, or (iii) subject
Thermo Electron to any impediment or condition in connection with the exercise
of any of its rights under this Agreement or the Certificate of Merger.
(p) Brokers. Except for fees payable to Lehman Brothers Inc.
("Lehman Brothers") and Rothschild, Inc. ("Rothschild, Inc."), no broker,
investment banker, financial advisor or other Person, is entitled to any
broker's, finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Thermo Electron or Merger Sub. Thermo
Electron has previously delivered to Fisher a true and complete copy of the
engagement letters between each of Lehman Brothers and Rothschild, Inc. and
Thermo Electron.
(q) Opinion of Financial Advisor. Thermo Electron has received
the opinion of its financial advisor, Lehman Brothers, dated the date of this
Agreement, to the effect that, as of such date, the Exchange Ratio is fair, from
a financial point of view, to the holders of Thermo Electron Common Stock.
(r) Material Contracts.
(i) For purposes of this Agreement, "Thermo Electron
Material Contract" shall mean:
(A) Any employment, severance, or Consulting Contract or
offer letter with an employee or former employee, officer or
director of Thermo Electron or any Subsidiary of Thermo Electron
(other than any unwritten Contract for the employment of any such
employee or former employee implied at law) which will require the
payment of amounts by Thermo Electron or any Subsidiary of Thermo
Electron, as applicable, after the date hereof in excess of $750,000
per annum;
(B) Any collective bargaining Contract, or any other
agreement or work rule or practice with any labor union, labor
organization or works council;
(C) Any Contract for capital expenditures or the
acquisition or construction of fixed assets which requires aggregate
future payments in excess of $6,750,000;
(D) Any Contract containing covenants of Thermo Electron
or any Subsidiary of Thermo Electron (1) to indemnify or hold
harmless another Person or group of Persons, unless such
indemnification or hold harmless obligation to such Person, or group
of Persons, as the case may be, would not reasonably be expected to
exceed a maximum of $3,500,000 (except for product
-51-
warranty obligations in Contracts for the sale of goods in the
ordinary course of business) or (2) not to compete (or otherwise
restrict or limit the ability of Thermo Electron or any of its
Subsidiaries to) in any line of business or geographic area;
(E) Any Contract requiring aggregate future payments or
expenditures in excess of $3,500,000 and relating to cleanup,
abatement, remediation or similar actions in connection with
environmental liabilities;
(F) Any license, royalty Contract or other Contract with
respect to Intellectual Property which, pursuant to the terms
thereof, requires payments by Thermo Electron or any Subsidiary of
Thermo Electron in excess of $2,000,000 per annum;
(G) Any Contract pursuant to which Thermo Electron or any
Subsidiary of Thermo Electron has entered into a partnership or
joint venture with any other Person (other than Thermo Electron or
any Subsidiary of Thermo Electron) for which the carrying value
exceeds $5,000,000;
(H) Any indenture, mortgage, loan, guarantee or credit
Contract under which Thermo Electron or any Subsidiary of Thermo
Electron has outstanding indebtedness or any outstanding note, bond,
indenture or other evidence of indebtedness for borrowed money or
otherwise or any guaranteed indebtedness for money borrowed by
others, in each case, for or guaranteeing an amount in excess of
$6,750,000, other than any such indebtedness between Thermo Electron
(whether as creditor or debtor) and any wholly owned Subsidiary of
Thermo Electron or between any wholly owned Subsidiaries of Thermo
Electron;
(I) Any Contract under which Thermo Electron or any
Subsidiary of Thermo Electron is (1) a lessee of real property, (2)
a lessee of, or holds or uses, any machinery, equipment, vehicle or
other tangible personal property owned by a third Person, (3) a
lessor of real property, or (4) a lessor of any tangible personal
property owned by Thermo Electron or any Subsidiary of Thermo
Electron, in each case which requires annual payments in excess of
$2,000,000;
(J) Any Contract (other than purchase or sale orders in
the ordinary course of business that are terminable or cancelable by
Thermo Electron without penalty on 90 days' notice or less) under
which Thermo Electron or any Subsidiary of Thermo Electron is a
purchaser or supplier of goods and services which, pursuant to the
terms thereof, requires payments by or to Thermo Electron or any
Subsidiary of Thermo Electron in excess of $6,750,000 per annum;
(K) Any material Contract (including guarantees) between
Thermo Electron or any wholly-owned Subsidiary of Thermo Electron
-52-
and another Subsidiary of Thermo Electron that is not wholly-owned
by Thermo Electron;
(L) Any Contract other than a Thermo Electron Benefit
Plan which requires payments by Thermo Electron or any Subsidiary of
Thermo Electron in excess of (i) $3,000,000 per annum containing
"change of control" or similar provisions, or (ii) $1,000,000, to
the Knowledge of Thermo Electron, containing "change of control" or
similar provisions;
(M) Any Contract entered into on or after January 1, 2003
relating to the acquisition or disposition of any business or any
assets (whether by merger, sale of stock or assets or otherwise), in
an amount in excess of $70,000,000 (all of which Contracts have been
made available to Fisher prior to the date hereof );
(N) Any Contract (other than Contracts of the type
described in subclauses (A) through (L) above) that involves
aggregate payments by or to Thermo Electron or any Subsidiary of
Thermo Electron in excess of $16,750,000 per annum; and
(O) Any Contract the termination or breach of which, or
the failure to obtain consent in respect of which, would reasonably
be expected to have a Material Adverse Effect on Thermo Electron and
its Subsidiaries, taken as a whole.
(ii) Schedule. Section 3.2(r)(ii) of the Thermo Electron
Disclosure Schedule sets forth a list of all Thermo Electron Material
Contracts as of the date hereof other than those listed as an exhibit to
Thermo Electron's most recent Form 10-K.
(iii) No Breach. All Thermo Electron Material Contracts are
valid and in full force and effect and enforceable in accordance with
their respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting the
rights and remedies of creditors generally and to general principles of
equity (regardless of whether considered in a proceeding in equity or at
law), except to the extent that (A) they have previously expired in
accordance with their terms or (B) the failure to be in full force and
effect, individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect on Thermo Electron and its Subsidiaries,
taken as a whole. Neither Thermo Electron nor any of its Subsidiaries,
nor, to Thermo Electron's Knowledge, any counterparty to any Thermo
Electron Material Contract, has violated any provision of, or committed or
failed to perform any act which, with or without notice, lapse of time or
both would constitute a default under the provisions of, any Thermo
Electron Material Contract, except in each case for those violations and
defaults which, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on Thermo Electron and its
Subsidiaries, taken as a whole.
-53-
(s) Real Property. Section 3.2(s) of the Thermo Electron
Disclosure Schedule lists all material real property owned in fee by Thermo
Electron or any of its Subsidiaries (the "Thermo Electron Owned Real Property")
or leased by Thermo Electron or any of its Subsidiaries as lessee (the "Thermo
Electron Leased Real Property"). Thermo Electron or any of its Subsidiaries owns
good and valid title to the Thermo Electron Owned Real Property and has valid
and enforceable leasehold interests under the leases with respect to the Thermo
Electron Leased Real Property, free and clear of all Liens other than (i)
Permitted Liens and (ii) easements, covenants, rights-of-way and other
encumbrances or restrictions, whether recorded or referred to in an applicable
lease or unrecorded, which do not materially impair the continued use of the
property subject thereto as currently used, but in no event, with respect to
clauses (i) and (ii), environmental or Tax Liens, judgments, lis pendens or any
Lien that would render the title to the Thermo Electron Owned Real Property
uninsurable by a reputable title insurance company. All of the improvements
located on any Thermo Electron Owned Real Property or Thermo Electron Leased
Real Property are in good condition and repair (subject to normal wear and tear)
without any structural defects of any kind. Except as set forth in Section
3.2(s) of the Thermo Electron Disclosure Schedule, each material lease with
respect to the Thermo Electron Leased Real Property is valid, unmodified and in
full force and effect, and there are no material subleases with respect to the
Thermo Electron Leased Real Property. Neither any landlord nor Thermo Electron
nor any of its Subsidiaries party to any material lease with respect to the
Thermo Electron Leased Real Property is in monetary or other material default
under any such lease.
(t) Reorganization. As of the date of this Agreement, neither
Thermo Electron nor any of its Subsidiaries (a) has taken (or caused to be
taken) any action or knows of any fact, agreement, plan or other circumstance
that would reasonably be expected to prevent the Merger from qualifying as a
"reorganization" within the meaning of Section 368(a) of the Code or (b) knows
of no reason why all approvals required for the consummation of the transactions
contemplated by this Agreement should not be obtained on a timely basis.
(u) Merger Sub Approval. The Board of Directors of Merger Sub, by
written consent duly adopted prior to the date hereof, (i) determined that this
Agreement and the Merger are advisable and fair to and in the best interests of
Merger Sub and its stockholder, (ii) duly approved and adopted this Agreement,
the Merger and the other transactions contemplated hereby, which adoption has
not been rescinded or modified, and (iii) submitted this Agreement for adoption
by Thermo Electron, as the sole stockholder of Merger Sub. Promptly following
the date hereof, Thermo Electron, as the sole stockholder of Merger Sub, will
have duly approved and adopted this Agreement and the Merger.
(v) Thermo Electron has resolved to take and has taken all action
necessary to render the terms of the Thermo Electron Rights Agreement (as
defined in Section 4.1(a)(ii)) and the rights thereunder inapplicable to the
execution and operation of this Agreement and the transactions contemplated
hereby.
-54-
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 4.1. Conduct of Business.
(a) Each of Fisher and Thermo Electron agrees that, between the
date of this Agreement and the Effective Time, except as set forth in Section
4.1(a) of the Fisher Disclosure Schedule or Section 4.1(a) of the Thermo
Electron Disclosure Schedule, as the case may be, or as expressly provided by
any other provision of this Agreement, or unless Fisher and Thermo Electron
shall otherwise agree in advance in writing, Fisher and Thermo Electron shall,
and shall cause each of their respective Subsidiaries to, (i) maintain its
existence in good standing under Applicable Laws, (ii) subject to the
restrictions and exceptions set forth in this Section 4.1(a), conduct its
operations only in the ordinary and usual course of business consistent with
past practice and (iii) use its reasonable best efforts to keep available the
services of the current officers, key employees and key consultants of each of
Fisher and Thermo Electron, respectively, and each of their respective
Subsidiaries and to preserve the current relationships of each of Fisher and
Thermo Electron and each of their respective Subsidiaries, with its customers,
suppliers and other Persons with which Fisher or Thermo Electron or any of their
respective Subsidiaries has significant business relations as are reasonably
necessary in order to preserve substantially intact its business organization.
In addition, without limiting the foregoing, except as set forth in Section
4.1(a) of the Fisher Disclosure Schedule or Section 4.1(a) of the Thermo
Electron Disclosure Schedule, as the case may be, or as expressly provided by
any other provision of this Agreement, Fisher and Thermo Electron shall not and
shall not permit any of their respective Subsidiaries to (unless required by
Applicable Laws applicable to Fisher and its Subsidiaries or Thermo Electron and
its Subsidiaries, respectively, or as specifically provided herein), between the
date of this Agreement and the Effective Time, directly or indirectly, do, or
agree to do, any of the following without the prior written consent of Fisher or
Thermo Electron, respectively:
(i) (A) except in the case of any of Thermo Electron's
wholly-owned Subsidiaries or Fisher's wholly-owned Subsidiaries and except
for the Charter Amendment in the case of Thermo Electron, amend or
otherwise change its articles or certificate of incorporation or bylaws or
equivalent organizational documents, or amend, or redeem the rights issued
under, the Thermo Electron Rights Agreement or any rights agreement
adopted by Fisher prior to the Effective Time (the "Fisher Rights
Agreement"), as the case may be (except as required hereunder), or
otherwise take any action to exempt any Person (other than Thermo Electron
or its Subsidiaries or Fisher or its Subsidiaries, as the case may be) or
any action taken by such Person from the Fisher Rights Agreement or the
Thermo Electron Rights Agreement, as the case may be, or any state
takeover statute (including Section 203 of the DGCL) or similarly
restrictive provisions of such party's organizational documents or (B) in
the case of Thermo Electron Material Subsidiaries or Fisher Material
Subsidiaries, liquidate, merge or consolidate or enter into a similar
transaction;
(ii) issue, sell, pledge, dispose of, grant, transfer,
encumber, or authorize the issuance, sale, pledge, disposition, grant,
transfer or encumbrance of any
-55-
shares of capital stock of, or other equity interests in, Fisher or Thermo
Electron or any of their respective Subsidiaries of any class, or
securities convertible or exchangeable or exercisable for any shares of
such capital stock or other equity interests, or any options, warrants or
other rights of any kind to acquire any shares of such capital stock or
other equity interests or such convertible or exchangeable securities, or
any other ownership interest, of Fisher or Thermo Electron or any of their
respective Subsidiaries, except for (A) the issuance of securities
issuable upon the exercise of options or other rights outstanding as of
the date hereof under any Fisher Benefit Plan or Thermo Electron Benefit
Plan, respectively, (B) the issuance of securities by any wholly-owned
Subsidiary of Fisher or Thermo Electron, respectively, to Fisher or Thermo
Electron, respectively, or to any other wholly-owned Subsidiary of Fisher
or Thermo Electron, respectively, (C) the issuance of shares, additional
options or other rights under any Fisher Benefit Plans or Thermo Electron
Benefit Plans, respectively, subject to the limitations set forth in
Section 4.1(a)(ii)(C) of the Fisher Disclosure Schedule or Section
4.1(a)(ii)(C) of the Thermo Electron Disclosure Schedule, as the case may
be, (D) in the case of Thermo Electron, the issuance of securities under
the Rights Agreement, dated as of September 15, 2005, by and between
Thermo Electron and American Stock Transfer & Trust Company, as Rights
Agent (the "Thermo Electron Rights Agreement"), (E) in the case of Fisher,
the issuance of Fisher Common Stock issuable upon conversion of Fisher
Convertible Debentures or (F) in the case of Thermo Electron, the issuance
of the Thermo Electron Common Stock issuable upon conversion of the Thermo
Electron Convertible Debentures;
(iii) (A) declare, set aside, make or pay any dividend or
other distribution (whether payable in cash, stock, property or a
combination thereof) with respect to any of the capital stock of Fisher or
Thermo Electron, or (B) declare, set aside, make or pay any dividend or
other distribution (whether payable in cash, stock, property or a
combination thereof) with respect to any non-wholly-owned Subsidiary,
other than in the ordinary course or (C) enter into any agreement with
respect to the voting of the capital stock of Fisher or Thermo Electron;
(iv) (A) reclassify, combine, split or subdivide any of their
capital stock or issue or authorize the issuance of any other securities
in respect of, in lieu of, or in substitution for, shares of their capital
stock, or (B) redeem, purchase or otherwise acquire, directly or
indirectly, any of its capital stock, other equity interests or other
securities other than repurchases by Thermo Electron of up to $300 million
in Thermo Electron Common Stock in the discretion of the Thermo Electron
board of directors, forfeiture of Fisher Stock Unit Awards or Thermo
Electron Restricted Stock and Fisher Options or Thermo Electron Options as
a result of terminations of employment in the ordinary course of business
and consistent with past practice;
(v) (A) incur any indebtedness for borrowed money or issue
any debt securities or assume, guarantee or endorse, or otherwise as an
accommodation become responsible for, the obligations of any Person (other
than a wholly-owned Subsidiary of Fisher or Thermo Electron, respectively)
for borrowed money, except for (x) indebtedness for borrowed money under
or guarantees with respect to indebtedness under Fisher's or Thermo
Electron's existing credit facilities, respectively, incurred in the
ordinary course of business consistent with past practice (for purposes of
this clause (x),
-56-
in no event shall acquisitions be considered to be in the ordinary course
of business), (y) indebtedness not to exceed $500,000,000 in the aggregate
incurred to finance acquisitions permitted pursuant to Section 4.1(a)(xii)
or (z) indebtedness of any wholly-owned Subsidiary of Fisher or Thermo
Electron, to Fisher or Thermo Electron, respectively, or to any other
wholly-owned Subsidiary of Fisher or Thermo Electron, respectively, or
indebtedness of Fisher of Thermo Electron, respectively, to any
wholly-owned Subsidiary of Fisher or Thermo Electron, respectively, (B)
(x) terminate or cancel (other than a termination or cancellation due to
the expiration of any term of any contract or any breach or nonperformance
by any counterparty) or agree to any material change in, any Fisher
Material Contract of the type covered in Sections 3.1(r)(D), (E), (F),
(G), (J), (K), (L), (N) and (O) or Thermo Electron Material Contract of
the type covered in Sections 3.2(r) (D), (E), (F), (G), (J), (K), (L), (N)
and (O), as the case may be, where such termination, cancellation or
change would have an adverse effect on Fisher and its Subsidiaries, or
Thermo Electron and its Subsidiaries, as the case may be, or (y) enter
into (other than any extension of an existing contract or entering into a
new contract with an existing counterparty on terms substantially the same
as the prior contract, in each case in the ordinary course of business
consistent with past practice) a contract which would be any of such
categories of Fisher Material Contract or any of such categories of Thermo
Electron Material Contract, as the case may be, if entered into prior to
the date hereof, except for the purposes of this Section 4.1(a)(v)(B) the
dollar amounts used to calculate whether a contract would be a Fisher
Material Contract or a Thermo Electron Material Contract, respectively,
shall be doubled or (C) make or authorize any material loan to any Person
(other than a wholly-owned Subsidiary) outside the ordinary course of
business;
(vi) (A) Increase the compensation or benefits payable or to
become payable to its directors or executive officers, (B) increase the
compensation or benefits payable or to become payable to its other
employees or its consultants (in each case, except for increases in the
ordinary course of business in accordance with past practices and
methodologies), (C) grant any rights to severance or termination pay to,
or enter into any employment, consulting or severance agreement with, any
director, officer or other employee or consultant of Fisher or Thermo
Electron or any of their respective Subsidiaries (excluding (i) any
severance payments in connection with terminations of employment occurring
following the date hereof and prior to the Effective Time made in
accordance with the terms of severance plans or agreements in effect on
the date hereof and set forth in Section 3.1(i)(i)(A) of the Fisher
Disclosure Schedule and Section 3.2(i)(i)(A) of the Thermo Electron
Disclosure Schedule (as applicable) or pursuant to a separation agreement
and release of claims with non-executive officer employees that provides
for severance (the amount of which is subject to the limitations set forth
on in Section 4.1(a)(vi)(C)(i) of the Fisher Disclosure Schedule and
Section 4.1(a)(vi)(C)(i) of the Thermo Electron Disclosure Schedule (as
applicable)) and is entered into in the ordinary of business consistent
with the past the practice of Fisher or Thermo Electron, as applicable, or
any of their respective Subsidiaries, and (ii) offer letters with respect
to non-executive officer employees hired after the date hereof in the
ordinary course of business in accordance with the past practice of Fisher
or Thermo Electron, as applicable, or any of their respective
Subsidiaries, provided that any such agreements shall not provide for the
payment of any severance or termination pay solely as a result of the
-57-
execution of this Agreement or the consummation of the transactions
contemplated hereby); (D) establish, adopt, enter into or amend any
collective bargaining agreement (or other agreement or understanding with
any trade union, works council or other employee representative body) or
any Benefit Plan for the benefit of any director, officer, consultant or
employee, except to the extent required by Applicable Laws; (E) take any
affirmative action to amend or waive any performance or vesting criteria
or accelerate vesting, exercisability, settlement or funding under any
Fisher Benefit Plan, Thermo Electron Benefit Plan, Fisher Option, Thermo
Electron Option or Fisher Stock Unit Award or (F) take any action with
respect to salary, compensation, benefits or other terms and conditions of
employment that would result in the holder of a change in control or
similar agreement having "good reason" to terminate employment and collect
severance payments and benefits pursuant to such agreement;
(vii) make any material change in accounting policies or
procedures, other than in the ordinary course of business consistent with
past practice or except as required by GAAP or by a Governmental Entity;
(viii) except in the ordinary course of business consistent
with past practice, make, change or revoke any material Tax election or
settle or compromise any material liability for Taxes, change any annual
Tax accounting period, change any method of Tax accounting, file any
material amended Tax Return, enter into any closing agreement relating to
any material Tax, surrender any right to claim a material Tax refund, or
consent to any extension or waiver of the statute of limitations period
applicable to any material Tax claim or assessment;
(ix) modify, amend or terminate, or waive, release or assign
any material rights or claims with respect to, any confidentiality or
standstill agreement to which Fisher or Thermo Electron, respectively, is
a party and which relates to a business combination involving Fisher or
Thermo Electron, respectively;
(x) write up, write down or write off the book value of any
assets, individually or in the aggregate, for Fisher and its Subsidiaries,
taken as a whole, or Thermo Electron and its Subsidiaries, taken as a
whole, respectively, other than (A) in the ordinary course of business,
(B) as may be required by GAAP or (C) otherwise not in excess of
$10,000,000;
(xi) except as permitted by Section 5.16, take any action to
render inapplicable, or to exempt any third Person (other than Thermo
Electron, Fisher or Merger Sub, respectively) from, (A) the provisions of
the DGCL or (B) any other state takeover law or state law that purports to
limit or restrict business combinations or the ability to acquire or vote
shares of capital stock;
(xii) acquire, dispose, agree to acquire from or agree to
dispose to, any Person any assets (not including Intellectual Property),
operations, business or securities or engage in, or agree to engage in,
any merger, consolidation or other business combination with any Person,
except in connection with (A) capital expenditures set forth in Section
4.1(a)(xii) of the Fisher Disclosure Schedule or Section 4.1(a)(xii) of
the
-58-
Thermo Electron Disclosure Schedule, as the case may be, permitted
hereunder, (B) acquisitions or dispositions of inventory and other
tangible assets (not including Intellectual Property) in the ordinary
course of business consistent with past practice, and (C) acquisitions and
dispositions of assets, operations, businesses or securities set forth in
Section 4.1(a)(xii) of the Fisher Disclosure Schedule or Section
4.1(a)(xii) of the Thermo Electron Disclosure Schedule, as the case may
be, and other such acquisitions and dispositions up to $100,000,000 in the
aggregate (measured by consideration paid or received);
(xiii) take any action that is intended or would reasonably
be expected to result in any of the conditions to the Merger set forth in
Article VI not being satisfied;
(xiv) acquire, dispose, agree to acquire from or agree to
dispose to, any Person, any Intellectual Property having a value, in the
aggregate, in excess of $5,000,000;
(xv) except as expressly contemplated by this Agreement, take
any actions that would result in restructuring charges pursuant to GAAP in
excess of $50,000,000 in the aggregate;
(xvi) except as required by Applicable Law or any judgment by
a court of competent jurisdiction, pay, discharge, settle or satisfy any
material claims, liabilities, obligations or litigation (absolute,
accrued, asserted or unasserted, contingent or otherwise), other than the
payment, discharge, settlement or satisfaction in the ordinary course of
business consistent with past practice or in accordance with their terms;
(xvii) enter into any new line of business material to Fisher
and its Subsidiaries, taken as a whole, or Thermo Electron and its
Subsidiaries, taken as a whole, respectively;
(xviii) fail to use reasonable best efforts to maintain in
full force and effect insurance coverage substantially similar to
insurance coverage maintained on the date hereof;
(xix) enter into any non-competition contract or other
contract that purports to limit in any material respect either the type of
business in which Fisher or its Subsidiaries, or Thermo Electron or its
Subsidiaries, respectively, may engage or the manner or locations in which
any of them may so engage in any business; or
(xx) authorize or enter into any agreement or otherwise make
any commitment to do any of the foregoing.
SECTION 4.2. No Solicitation.
(a) From the date hereof until the earlier of the Effective Time
and the termination of this Agreement, none of Fisher or Thermo Electron, their
respective Subsidiaries or any officer, director, employee, agent or
representative (including any investment banker,
-59-
financial advisor, attorney, accountant or other retained representative)
("Representatives") of Fisher or Thermo Electron or any of their respective
Subsidiaries shall directly or indirectly (i) solicit, initiate or encourage or
knowingly facilitate (including by way of furnishing information or entering
into any agreements, arrangements or understandings) or take any other action
designed to facilitate any inquiries or proposals regarding any merger, share
exchange, consolidation, sale of assets, sale of shares of capital stock
(including, without limitation, by way of a tender offer) or similar
transactions involving Fisher or Thermo Electron or any of their respective
Subsidiaries that, if consummated, would constitute an Alternative Transaction
(as defined in Section 8.3(b)) (any of the foregoing inquiries or proposals
being referred to herein as an "Alternative Transaction Proposal"), (ii)
participate in any discussions or negotiations regarding an Alternative
Transaction or (iii) enter into any agreement regarding any Alternative
Transaction. Notwithstanding the foregoing, the Board of Directors of Fisher and
Thermo Electron, respectively, shall be permitted, prior to the receipt of the
Fisher Stockholder Approval and Thermo Electron Stockholder Approval,
respectively, and subject to compliance with the other terms of this Agreement,
including this Section 4.2, and to first entering into a confidentiality
agreement with the person proposing such Alternative Transaction Proposal on
terms substantially similar to, and no less favorable to Fisher or Thermo
Electron, respectively, than those contained in the Confidentiality Agreement,
dated as of April 13, 2006, as amended as of May 7, 2006, between Fisher and
Thermo Electron (the "CDA"), to (x) furnish information with respect to Fisher
or Thermo Electron and their respective Subsidiaries, as the case may be, to the
Person making such bona fide written Alternative Transaction Proposal (and its
Representatives) and (y) participate in discussions and negotiations with
respect to such bona fide written Alternative Transaction Proposal received by
Fisher or Thermo Electron, as applicable, in each case if the Board of Directors
of Fisher or Thermo Electron, as the case may be, determines in good faith
(after consultation with outside legal counsel) that the failure to do so would,
or would reasonably be likely to, cause it to violate its fiduciary duties.
(b) From the date hereof until the earlier of the Effective Time
and the termination of this Agreement, Fisher shall notify Thermo Electron and
Thermo Electron shall notify Fisher, as the case may be, promptly (but in no
event later than 24 hours) after receipt of any Alternative Transaction
Proposal, or any material modification of or material amendment to any
Alternative Transaction Proposal or any request for nonpublic information
relating to Fisher or Thermo Electron, respectively, or any of their respective
Subsidiaries relating to any Alternative Transaction Proposal. Such notice to
Fisher or Thermo Electron, as the case may be, shall be made orally and in
writing, and shall indicate the identity of the Person making the Alternative
Transaction Proposal or such request and the material terms of any such
Alternative Transaction Proposal or any material modification or material
amendment to an Alternative Transaction Proposal. From the date hereof until the
earlier of the Effective Time and the termination of this Agreement, Fisher
shall keep Thermo Electron and Thermo Electron shall keep Fisher reasonably
informed on a current basis of any material changes in the status and any
material changes or modifications in the terms of any such Alternative
Transaction Proposal, indication or request. Fisher shall also promptly, and in
any event within 24 hours, notify Thermo Electron, and Thermo Electron shall
also promptly, and in any event within 24 hours, notify Fisher, orally and in
writing, if it enters into discussions or negotiations concerning any
Alternative Transaction Proposal in accordance with Section 4.2(a).
-60-
(c) Nothing contained in this Section 4.2 shall prohibit Fisher
or Thermo Electron or their respective Subsidiaries from taking and disclosing
to their respective stockholders a position required by Rule 14e-2(a) or Rule
14d-9 promulgated under the Exchange Act.
(d) Fisher and its Subsidiaries, and Thermo Electron and its
Subsidiaries, respectively, shall immediately cease and cause to be terminated
any existing discussions or negotiations with any Persons (other than Fisher or
Thermo Electron, respectively) conducted heretofore with respect to any of the
foregoing, and shall use reasonable best efforts to cause all Persons other than
Fisher or Thermo Electron who have been furnished confidential information
regarding Fisher or Thermo Electron in connection with the solicitation of or
discussions regarding an Alternative Transaction Proposal within the 12 months
prior to the date hereof promptly to return or destroy such information. Fisher
and Thermo Electron agree not to, and to cause their respective Subsidiaries not
to, release any third party from the confidentiality and standstill provisions
of any agreement to which Fisher or Thermo Electron or their respective
Subsidiaries is or may become a party.
(e) Fisher and Thermo Electron shall use their respective
reasonable best efforts to inform their respective Representatives of the
restrictions described in this Section 4.2. It is understood that any violation
of the restrictions set forth in this Section 4.2 by any officer, director,
employee, agent or representative (including any investment banker, financial
advisor, attorney, accountant or other retained representative) of Fisher or its
Subsidiaries, or Thermo Electron or its Subsidiaries, respectively, at the
direction or with the consent of Fisher or Thermo Electron, respectively, or
their respective Subsidiaries, as the case may be, shall be deemed to be a
breach of this Section 4.2 by Fisher or Thermo Electron, respectively.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1. Preparation of SEC Documents; Stockholders' Meetings.
(a) As soon as practicable following the date of this Agreement,
Thermo Electron and Fisher shall prepare and file with the SEC the Joint Proxy
Statement, and Thermo Electron shall prepare and file with the SEC the Form S-4,
in which the Joint Proxy Statement will be included as a prospectus. Each of
Thermo Electron and Fisher shall use reasonable best efforts to have the Form
S-4 declared effective under the Securities Act as promptly as practicable after
such filing. Thermo Electron will use reasonable best efforts to cause the Joint
Proxy Statement to be mailed to Thermo Electron's stockholders, and Fisher will
use reasonable best efforts to cause the Joint Proxy Statement to be mailed to
Fisher's stockholders, in each case as promptly as practicable after the Form
S-4 is declared effective under the Securities Act. Thermo Electron shall also
take any action (other than qualifying to do business in any jurisdiction in
which it is not now so qualified or filing a general consent to service of
process) required to be taken under any applicable state securities laws in
connection with the issuance and reservation of shares of Thermo Electron Common
Stock in the Merger and the conversion of Fisher Options into options to acquire
Thermo Electron Common Stock, and Fisher shall furnish all information
concerning Fisher and the holders of Fisher Common Stock as may be
-61-
reasonably requested in connection with any such action. No filing of, or
amendment or supplement to, the Form S-4 or the Joint Proxy Statement will be
made by Thermo Electron or Fisher, as applicable, without the other's prior
consent (which shall not be unreasonably withheld) and without providing the
other the opportunity to review and comment thereon. Thermo Electron or Fisher,
as applicable, will advise the other promptly after it receives oral or written
notice thereof, of the time when the Form S-4 has become effective or any
supplement or amendment has been filed, the issuance of any stop order, the
suspension of the qualification of the Thermo Electron Common Stock issuable in
connection with the Merger for offering or sale in any jurisdiction, or any oral
or written request by the SEC for amendment of the Joint Proxy Statement or the
Form S-4 or comments thereon and responses thereto or requests by the SEC for
additional information and will promptly provide the other with copies of any
written communication from the SEC or any state securities commission. If at any
time prior to the Effective Time any information relating to Thermo Electron or
Fisher, or any of their respective Affiliates, officers or directors, should be
discovered by Thermo Electron or Fisher which should be set forth in an
amendment or supplement to any of the Form S-4 or the Joint Proxy Statement, so
that any of such documents would not include any misstatement of a material fact
or omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, the party
which discovers such information shall promptly notify the other parties hereto
and an appropriate amendment or supplement describing such information shall be
promptly filed with the SEC and, to the extent required by law, disseminated to
the respective stockholders of Thermo Electron and Fisher.
(b) Each of Fisher and Thermo Electron shall, as promptly as
practicable after the Form S-4 is declared effective under the Securities Act,
take all action necessary in accordance with Applicable Laws and the Fisher
Organizational Documents, in the case of Fisher, and the Thermo Electron
Organizational Documents, in the case of Thermo Electron, to duly give notice
of, convene and hold a meeting of their stockholders, respectively, to be held
as promptly as practicable to consider, in the case of Thermo Electron, the
Stock Issuance and the Charter Amendment (the "Thermo Electron Stockholders'
Meeting") and, in the case of Fisher, the adoption and approval of this
Agreement and the Merger (the "Fisher Stockholders' Meeting"). Each of Fisher
and Thermo Electron will use reasonable best efforts to solicit from their
stockholders, respectively, proxies in favor of, in the case of Thermo Electron,
the Stock Issuance and the Charter Amendment, and, in the case of Fisher, the
adoption and approval of this Agreement and the Merger, and will take all other
action necessary or advisable to secure the vote or consent of their
stockholders, respectively, required by the rules of the NYSE or Applicable Laws
to obtain such approvals. Notwithstanding anything to the contrary contained in
this Agreement, Fisher or Thermo Electron may adjourn or postpone the Fisher
Stockholders' Meeting or Thermo Electron Stockholders' Meeting, as the case may
be, to the extent necessary to ensure that any necessary supplement or amendment
to the Joint Proxy Statement is provided to their respective stockholders, in
advance of a vote on, in the case of Thermo Electron, the Stock Issuance and the
Charter Amendment and, in the case of Fisher, the approval and adoption of this
Agreement and the Merger, or, if, as of the time for which the Fisher
Stockholders' Meeting or Thermo Electron Stockholders' Meeting, as the case may
be, is originally scheduled, there are insufficient shares of Fisher Common
Stock or Thermo Electron Common Stock, as the case may be, represented (either
in person or by proxy) to constitute a quorum necessary to conduct the business
of such meeting. Each of Fisher and Thermo Electron shall ensure that the Fisher
Stockholders' Meeting and the Thermo Electron Stockholders'
-62-
Meeting, respectively, is called, noticed, convened, held and conducted, and
that all proxies solicited in connection with the Fisher Stockholders' Meeting
or Thermo Electron Stockholders' Meeting, as the case may be, are solicited in
compliance with Applicable Laws, the rules of the NYSE and, in the case of
Fisher, the Fisher Organizational Documents, and, in the case of Thermo
Electron, the Thermo Electron Organizational Documents. Except with respect to
matters as to which preliminary proxy materials would not be required to be
filed with the SEC, without the prior written consent of Fisher, the Stock
Issuance and the Charter Amendment are the only matters which Thermo Electron
shall propose to be acted on by Thermo Electron's stockholders at the Thermo
Electron Stockholders' Meeting. Without the prior written consent of Thermo
Electron, approval and adoption of this Agreement and the Merger are the only
matters which Fisher shall propose to be acted on by Fisher's stockholders at
the Fisher Stockholders' Meeting.
(c) Each of Fisher and Thermo Electron will use reasonable best
efforts to hold the Fisher Stockholders' Meeting and Thermo Electron
Stockholders' Meeting, respectively, on the same date as the other party and as
soon as reasonably practicable after the date of this Agreement.
SECTION 5.2. Accountant's Letters. Each of Fisher and Thermo Electron
shall use reasonable best efforts to cause to be delivered to the other party
two letters from their respective independent accountants, one dated
approximately as of the date the Form S-4 is declared effective and one dated
approximately as of the Closing Date, each addressed to the other party, in form
and substance reasonably satisfactory to the other party and customary in scope
and substance for comfort letters delivered by independent public accountants in
connection with registration statements similar to the Form S-4.
SECTION 5.3. Access to Information; Confidentiality.
(a) Subject to the CDA and Applicable Laws, each of Thermo
Electron and Fisher shall, and shall cause each of their respective Subsidiaries
to, afford to the other party and to the officers, employees, accountants,
counsel, financial advisors and other representatives of such other party,
reasonable access at all reasonable times on reasonable notice during the period
prior to the Effective Time to all their respective properties, books,
contracts, commitments, personnel and records (provided, that such access shall
not unreasonably interfere with the business or operations of such party) and,
during such period and subject to the CDA and Applicable Laws, each of Thermo
Electron and Fisher shall, and shall cause each of their respective Subsidiaries
to, make available to the other party (i) a copy of each material report,
schedule, registration statement and other document filed by it during such
period pursuant to the requirements of federal or state securities laws and (ii)
all other material information concerning its business, properties and personnel
as such other party may reasonably request. No review pursuant to this Section
5.3 shall affect or be deemed to modify any representation or warranty contained
herein, the covenants or agreements of the parties hereto or the conditions to
the obligations of the parties hereto under this Agreement.
(b) Each of Thermo Electron and Fisher will hold and keep
confidential, and will cause their respective officers and employees and will
direct its
-63-
accountants, counsel, financial advisors and other representatives and
Affiliates to hold and keep confidential, any nonpublic information in
accordance with the terms of the CDA.
SECTION 5.4. Reasonable Best Efforts.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, each of the parties agrees to use their reasonable best efforts
to take, or cause to be taken, all actions, and to do, or cause to be done, and
to assist and cooperate with the other parties in doing, all things necessary,
proper or advisable under Applicable Laws to consummate and make effective, in
the most expeditious manner practicable, the Merger and the other transactions
contemplated by this Agreement, including (i) the obtaining of all necessary
actions or non-actions, waivers, consents and approvals from Governmental
Entities and the making of all necessary registrations and filings and the
taking of all steps as may be necessary to obtain an approval or waiver from, or
to avoid an action or proceeding by, any Governmental Entity, including all
filings required under the HSR Act, with the Federal Trade Commission or the
United States Department of Justice, all notifications and other filing required
under the ECMR and any other necessary antitrust, competition or similar laws of
any foreign jurisdiction, (ii) the obtaining of all necessary consents,
approvals or waivers, (iii) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging this Agreement or
the consummation of the transactions contemplated by this Agreement, including
promptly seeking to have any stay or temporary restraining order entered by any
court or other Governmental Entity vacated or reversed, and (iv) the execution
and delivery of any additional instruments necessary to consummate the
transactions contemplated by, and to fully carry out the purposes of, this
Agreement. In furtherance of the foregoing, the parties shall cooperate and use
reasonable best efforts to determine and agree upon, within two weeks of the
date hereof, a list of those Governmental Entities in foreign jurisdictions to
which it may be necessary or appropriate to submit any filings, notifications or
registrations or take any other actions in connection with regulatory or legal
requirements of such Governmental Entities relating to the transactions
contemplated hereby; provided that the foregoing shall not affect or otherwise
modify the closing conditions in Sections 6.1(b) and (c). Subject to Applicable
Laws relating to the exchange of information, Fisher and Thermo Electron shall
have the right to review in advance, and to the extent reasonably practicable
each will consult the other on, all the information relating to Fisher and its
Subsidiaries or Thermo Electron and its Subsidiaries, as the case may be, that
appears in any filing made with, or written materials submitted to, any
Governmental Entity in connection with the Merger and the other transactions
contemplated by this Agreement.
(b) Each of Thermo Electron and Fisher shall keep the other
reasonably apprised of the status of matters relating to the completion of the
transactions contemplated hereby and work cooperatively in connection with
obtaining all required approvals or consents of any Governmental Entity. In that
regard, each party shall without limitation: (i) promptly notify the other of,
and if in writing, furnish the other with copies of (or, in the case of oral
communications, advise the other orally of) any communications from or with any
Governmental Entity with respect to the Merger or any of the other transactions
contemplated by this Agreement, (ii) permit the other to review and discuss in
advance, and consider in good faith the views of the other in connection with,
any proposed written (or any proposed oral) communication with any such
Governmental Entity with respect to the Merger or any of the other transactions
contemplated by this Agreement, (iii) not participate in any meeting or oral
-64-
communication with any such Governmental Entity with respect to the Merger or
any of the other transactions contemplated by this Agreement unless it consults
with the other in advance and, to the extent permitted by such Governmental
Entity, gives the other the opportunity to attend and participate thereat, (iv)
furnish the other with copies of all correspondence, filings and communications
(and memoranda setting forth the substance thereof) between it and any such
Governmental Entity with respect to the Merger or any of the other transactions
contemplated by this Agreement and the Merger, and (v) furnish the other with
such necessary information and reasonable assistance as the other may reasonably
request in connection with its preparation of necessary filings or submissions
of information to any such Governmental Entity. Each of Thermo Electron and
Fisher may, as each deems advisable and necessary, reasonably designate any
competitively sensitive material provided to the other under this Section 5.4 as
"outside counsel only." Such material and the information contained therein
shall be given only to the outside legal counsel of the recipient and will not
be disclosed by such outside counsel to employees, officers, or directors of the
recipient unless express permission is obtained in advance from the source of
the materials (Thermo Electron or Fisher, as the case may be) or its legal
counsel.
(c) In connection with and without limiting the foregoing, Thermo
Electron and Fisher shall (i) take all action necessary to ensure that no state
takeover statute or similar statute or regulation is or becomes applicable to
this Agreement or any of the transactions contemplated hereby and (ii) if any
state takeover statute or similar statute or regulation becomes applicable to
this Agreement or any of the transactions contemplated hereby, take all action
necessary to ensure that such transactions may be consummated as promptly as
practicable on the terms required by, or provided for, in this Agreement and
otherwise to minimize the effect of such statute or regulation on the Merger and
the other transactions contemplated by this Agreement.
(d) In connection with the filings referenced in Section 5.4(a)
and (b), the parties shall cooperate with each other and use their respective
reasonable best efforts to promptly prepare and file all necessary
documentation, to effect all applications, notices, petitions and filings, to
obtain as promptly as practicable all permits, consents, approvals and
authorizations of all Governmental Entities that are necessary or advisable to
consummate the transactions contemplated by this Agreement (including the
Merger), and to comply with the terms and conditions of all such permits,
consents, approvals and authorizations of all such third parties or Governmental
Entities. Notwithstanding the foregoing, nothing contained herein shall be
deemed to require Thermo Electron or Fisher to take any action, or commit to
take any action, or agree to any condition or restriction, in connection with
obtaining the foregoing permits, consents, approvals and authorizations of
Governmental Entities, that would reasonably be expected to have a material
adverse effect (measured on a scale relative to Thermo Electron in the case of
Thermo Electron and Fisher in the case of Fisher) on either Thermo Electron or
Fisher, respectively.
(e) Fisher and its Subsidiaries shall, upon reasonable notice,
provide, and shall cause their respective officers, employees and
representatives to provide, all cooperation reasonably requested by Thermo
Electron in connection with (i) the repayment, repurchase, redemption,
defeasance, modification, refinancing, or assumption, of all rights, duties and
obligations, contingent or otherwise, of Fisher and its Subsidiaries in respect
of the
-65-
Fisher financings described in Section 5.4(e) of the Fisher Disclosure Schedule
and (ii) the contemplated Thermo Electron financings identified in Section
5.4(e) of the Thermo Electron Disclosure Schedule; provided that,
notwithstanding the foregoing, no request for cooperation or other assistance
shall be required if it would unreasonably disrupt the business or operations of
Fisher or any of its Subsidiaries.
SECTION 5.5. Indemnification and Insurance.
(a) From and after the Effective Time, Thermo Electron will, and
will cause the Surviving Corporation to, fulfill and honor in all respects the
obligations of Fisher pursuant to any indemnification agreements between Fisher
and its present or former directors, officers and employees in effect
immediately prior to the Effective Time, subject to Applicable Laws. For at
least six years after the Effective Time, Thermo Electron shall, and shall cause
the Surviving Corporation to, indemnify and hold harmless the present and former
officers and directors of Fisher and its Subsidiaries (the "Indemnified
Parties") for any costs, judgments, fines, losses, claims, damages or
liabilities incurred in connection with any claim, action, suit or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact
that such Person is or was an officer, director or employee of Fisher or any of
its Subsidiaries in respect of acts or omissions occurring at or prior to the
Effective Time (including those related to this Agreement and the transactions
contemplated hereby), and shall advance expenses in respect thereof, in each
case, to the fullest extent permitted by Applicable Laws.
(b) For a period of six years after the Effective Time, the
Surviving Corporation shall cause to be maintained in effect the current
policies of directors' and officers' and fiduciary liability insurance
maintained by Fisher with respect to claims arising from facts or events which
occurred on or before the Effective Time (including those related to this
Agreement and the transactions contemplated hereby); provided, that the
Surviving Corporation may substitute therefor policies of at least the same
coverage and amounts containing terms and conditions which are no less
advantageous to former officers and directors of Fisher only with respect to
claims arising from facts or events which occurred at or before the Effective
Time; and provided, further, that if the aggregate annual premiums for such
policies at any time during such period will exceed 250% of the per annum
premium rate paid by Fisher and its Subsidiaries as of the date hereof for such
policies, then Thermo Electron shall be required to provide as much coverage as
is then available at such annual premium.
(c) Notwithstanding anything herein to the contrary and to the
maximum extent permitted by Applicable Laws, if any claim, action, suit,
proceeding or investigation is made or brought against any Indemnified Party on
or prior to the sixth anniversary of the Effective Time, the provisions of this
Section 5.5 shall continue in effect until the final disposition of such claim,
action, suit, proceeding or investigation.
(d) If Thermo Electron, the Surviving Corporation or any of their
respective successors or assigns (i) shall consolidate with or merge into any
other Person and shall not be the continuing or surviving corporation or entity
of such consolidation or merger or (ii) shall transfer all or substantially all
of its properties or assets to any Person, then, in each case, Thermo Electron
shall take such action as may be necessary so that such Person shall assume all
of the applicable obligations set forth in this Section 5.5.
-66-
(e) The provisions of this Section 5.5 are (i) intended to be for
the benefit of, and shall be enforceable by, each Indemnified Party, his or her
heirs and representatives and (ii) in addition to, and not in substitution for,
any other rights to indemnification or contribution that any such Person may
have by contract or otherwise.
SECTION 5.6. Fees and Expenses. Except as set forth in this Section 5.6
and in Section 7.2, all fees and expenses incurred in connection with the
Merger, this Agreement and the transactions contemplated by this Agreement shall
be paid by the party incurring such fees or expenses, whether or not the Merger
is consummated, except that each of Fisher and Thermo Electron shall bear and
pay one-half of the costs and expenses incurred by Thermo Electron, Merger Sub
or Fisher (other than attorneys' fees, accountants' fees and related expenses)
in connection with (i) the filing, printing and mailing of the Form S-4
(including financial statements and exhibits), the Joint Proxy Statement
(including SEC filing fees) and any preliminary materials related thereto and
(ii) the filings of the premerger notification and report forms under the HSR
Act and any applicable antitrust, competition or similar laws of any foreign
jurisdiction (including filing fees).
SECTION 5.7. Public Announcements. Neither Fisher nor Thermo Electron
shall, and neither Fisher nor Thermo Electron shall permit any of their
respective Subsidiaries to, issue or cause the publication of any press release
or other public announcement with respect to, or otherwise make any public
statement concerning, the transactions contemplated by this Agreement without
the prior consent (which consent shall not be unreasonably withheld) of Thermo
Electron, in the case of a proposed announcement or statement by Fisher, or
Fisher, in the case of a proposed announcement or statement by Thermo Electron;
provided, however, that either party may, without the prior consent of the other
party (but after prior consultation with the other party to the extent
practicable under the circumstances) issue or cause the publication of any press
release or other public announcement to the extent required by law or by the
rules and regulations of the NYSE.
SECTION 5.8. Listing. Thermo Electron shall use reasonable best efforts
to cause the Thermo Electron Common Stock issuable under Article II, and those
shares of Thermo Electron Common Stock required to be reserved for issuance in
connection with the Merger, to be authorized for listing on the NYSE, upon
official notice of issuance.
SECTION 5.9. Tax-Free Reorganization Treatment. Thermo Electron and
Fisher hereby adopt this Agreement as a plan of reorganization within the
meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a). Thermo
Electron and Fisher intend that the Merger will qualify as a reorganization
within the meaning of Section 368(a) of the Code, and each shall, and shall
cause their respective Subsidiaries to, use its reasonable best efforts to cause
the Merger to so qualify. Neither Thermo Electron, Merger Sub nor Fisher shall
take any action, cause or permit any action to be taken, or fail to take any
action, that would reasonably be expected to cause the Merger to fail to qualify
as a reorganization within the meaning of Section 368(a) of the Code.
SECTION 5.10. Conveyance Taxes. Fisher and Thermo Electron shall
cooperate in the preparation, execution and filing of all returns,
questionnaires, applications or other documents regarding any real property
transfer or gains, sales, use, transfer, value added,
-67-
stock transfer and stamp taxes, any transfer, recording, registration and other
fees or any similar taxes which become payable in connection with the
transactions contemplated by this Agreement that are required or permitted to be
filed on or before the Effective Time.
SECTION 5.11. Equity Awards and Employee Benefits.
(a) Equity Awards. Fisher Options. At the Effective Time, each
then outstanding Fisher Option, whether or not exercisable at the Effective
Time, will be assumed by Thermo Electron. Subject to, and in accordance with,
the terms of the applicable Fisher Stock Plan and option award agreement, each
Fisher Option so assumed by Thermo Electron under this Agreement will otherwise
continue to have, and be subject to, the same terms and conditions set forth in
the applicable Fisher Option (including any applicable option award agreement or
other document evidencing such Fisher Option) immediately prior to the Effective
Time (including any vesting or forfeiture provisions or repurchase rights, but
taking into account any acceleration of Fisher Options pursuant to any Fisher
Benefit Plan or applicable option award agreement), except that (A) each Fisher
Option, when exercisable, will be exercisable for that number of whole shares of
Thermo Electron Common Stock equal to the product of the number of shares of
Fisher Common Stock that were subject to such Fisher Option immediately prior to
the Effective Time multiplied by the Exchange Ratio, rounded down to the nearest
whole number of shares of Thermo Electron Common Stock and (B) the per share
exercise price for the shares of Thermo Electron Common Stock issuable upon
exercise of such assumed Fisher Option will be equal to the quotient determined
by dividing the exercise price per share of Fisher Common Stock of such Fisher
Option by the Exchange Ratio, rounded up to the nearest whole cent.
(ii) Fisher Stock Unit Awards. At the Effective Time, each
Fisher Stock Unit Award then outstanding shall be assumed by Thermo
Electron. Subject to, and in accordance with, the terms of the applicable
Fisher Stock Plan or Fisher Deferred Compensation Plan and any applicable
award or other agreement, each Fisher Stock Unit Award shall be converted
into the right to receive the number of shares of Thermo Electron Common
Stock (or an amount in respect thereof for cash settled Fisher Stock Unit
Awards) equal to the number of shares of Fisher Common Stock subject to
the Fisher Stock Unit Award, multiplied by the Exchange Ratio (rounded
down to the nearest whole number of shares of Thermo Electron Common
Stock). Each Fisher Stock Unit Award shall have the same terms and
conditions as were in effect immediately prior to the Effective Time,
except that the performance conditions applicable to the vesting of the
assumed Fisher Stock Unit Awards shall be deemed to have been satisfied
effective as of the Closing Date, and such Fisher Stock Unit Awards (other
than those granted under the Fisher 2005 Equity and Incentive Plan) that
are evidenced by a Performance Based Restricted Stock Unit Purchase
Agreement and which become vested and payable in accordance with their
current terms upon a change in control transaction (for this purpose
taking into account Section 5.11(e) hereof) (the holders of which and the
related number of units are identified on a list which Fisher has
delivered to Thermo Electron prior to the date hereof), shall instead vest
and be settled in three equal increments on the first three anniversaries
of the original grant date of the Fisher Stock Unit Award, subject to the
holder's continued employment with Thermo Electron or the Surviving
Corporation or their Subsidiaries as of each such vesting date, unless,
following the Closing Date, the holder of the Fisher Stock Unit Award is
terminated prior to the full vesting of the Fisher Stock Unit Award either
without Cause or for Good Reason
-68-
(as each such term is defined in Fisher's 2005 Equity and Incentive Plan),
in which case the Fisher Stock Unit Award will vest immediately upon such
termination of employment. Fisher Stock Unit Awards described in this
Section 5.11(a)(ii) that vest upon a termination of employment as
described in the previous sentence shall be settled upon the earliest date
following the applicable vesting date which will not cause an imposition
of any additional tax under Section 409A of the Code.
(iii) Fisher and Thermo Electron agree that prior to the
Effective Time, Fisher shall, and shall be permitted under this Agreement,
to take all corporate action necessary, including, but not limited to,
amending any Fisher Option, Fisher Stock Unit Award or Fisher equity award
agreement evidencing such award, or Fisher Stock Plan or Fisher Deferred
Compensation Plan, (A) to effectuate the provisions of Section 5.11(a)(i)
and Section 5.11(a)(ii) and (B) to the extent applicable, to preclude any
automatic or formulaic grant of options, restricted shares or other awards
thereunder on or after the date hereof other than pursuant to the Fisher
Purchase Plan as in effect on the date hereof. From and after the
Effective Time, all references to Fisher (other than any references
relating to a "change in control" of Fisher) in each Fisher Stock Plan,
Fisher Deferred Compensation Plan and in each agreement evidencing any
Fisher Options or Fisher Stock Unit Awards shall be deemed to refer to
Thermo Electron, unless Thermo Electron determines otherwise. As soon as
reasonably practicable, but in no event later than ten business days
following the Effective Time, Thermo Electron will (A) issue to each
holder of an assumed Fisher Option or Fisher Stock Unit Award a document
evidencing the foregoing assumption of such Fisher Option or Fisher Stock
Unit Award by Thermo Electron, (B) issue appropriate notices setting forth
such holders' rights pursuant to the assumed Fisher Options or Fisher
Stock Unit Awards, and (C) issue appropriate notices to each holder of an
assumed Fisher Option or Fisher Stock Unit Award setting forth the effect
of the Merger on the Fisher Options or Fisher Stock Unit Awards. Prior to
the Effective Time, Thermo Electron shall take all corporate action
necessary to reserve for issuance a sufficient number of shares of Thermo
Electron Common Stock for delivery in connection with the exercise of the
converted Fisher Options and Fisher Stock Unit Awards. The parties shall
use their reasonable best efforts to ensure that the conversion of any
Fisher Options which are intended to be "incentive stock options" (as
defined in Section 422 of the Code) provided for in Section 5.11(a)(i)
shall be effected in a manner consistent with Section 424(a) of the Code.
(iv) Within one business day of the Closing Date, Thermo
Electron shall register the shares of Thermo Electron Common Stock subject
to Fisher Options and Fisher Stock Unit Awards by filing an effective
registration statement on Form S-8 (or any successor form) or another
appropriate form, and Thermo Electron shall maintain the effectiveness of
such registration statement or registration statements with respect
thereto for so long as such awards remain outstanding. Following the
Closing Date, Thermo Electron may grant equity awards under the Fisher
Stock Plans, to the extent shares are available for grant under any such
plan, in accordance with the mergers and acquisitions exemption to the
equity compensation plan shareholder approval requirement under the NYSE
rules.
(v) Notwithstanding the foregoing, Thermo Electron shall not
be required to take any of the actions contemplated by this Section
5.11(a) if, and to the extent that, such action does not comply with the
Applicable Law of any foreign jurisdiction.
-69-
(b) Fisher shall terminate the Fisher Purchase Plan at least one
full payroll period prior to the Effective Time. To the extent any offering
period under the Fisher Purchase Plan is in progress prior to such termination,
Fisher shall ensure that such offering period ends immediately prior to such
termination, and that each participant's accumulated contributions for such
offering period are applied towards the purchase of Fisher Common Stock
immediately prior to such termination unless the participant has previously
withdrawn from such offering period in accordance with the terms of such plan.
(c) This Section 5.11(c) shall apply to each employee of Fisher
or its Subsidiaries as of immediately prior to the Effective Time other than
Represented Employees (as defined in Section 5.12) (the "Fisher Employees").
Following the Closing Date, and for two years thereafter, but in no event later
than such time as a Fisher Employee ceases to be employed by or provide services
to Thermo Electron or the Surviving Corporation or their Subsidiaries following
the Effective Time, Thermo Electron shall provide, or cause to be provided, the
Fisher Employees, benefits and compensation (other than stock options or other
equity-based incentive plans, programs, agreements or arrangements) that in the
aggregate are substantially no less favorable than the benefits provided, in
the aggregate, to such individuals by Fisher and its Subsidiaries; it being
understood that the Fisher Employees may commence participating in the Thermo
Electron Benefit Plans on different dates following the Closing Date with
respect to different Thermo Electron Benefit Plans. Thermo Electron shall give
Fisher Employees full credit for purposes of eligibility, vesting, determination
of the level of benefits and benefit accrual under any employee benefit plans or
arrangements maintained by Thermo Electron or any Subsidiary for such Fisher
Employees' service with Fisher and its Subsidiaries (and service with any
predecessor, to the extent recognized by Fisher or its Subsidiaries) prior to
the Closing Date, except to the extent that such crediting would result in
duplication of benefits and provided that no prior service credit shall be
recognized for purposes of (i) benefit accrual, level of pay credits and/or
grandfathering under any defined benefit plan or (ii) post-retirement welfare
benefits. Thermo Electron shall (i) waive all limitations as to preexisting
conditions exclusions and waiting periods with respect to participation and
coverage requirements applicable to the Fisher Employees under any welfare
benefit plans that such employees may be eligible to participate in after the
Effective Time, other than limitations or waiting periods that are already in
effect with respect to such employees and that have not been satisfied as of the
Effective Time under any welfare plan maintained for the Fisher Employees
immediately prior to the Closing Date, and (ii) provide each Fisher Employee
with credit for any co-payments and deductibles paid under any Fisher Benefit
Plan that provides healthcare benefits in the plan year in effect as of the
Closing Date in satisfying any applicable deductible or out-of-pocket
requirements under any healthcare plans of Thermo Electron or the Surviving
Corporation that such employees are eligible to participate in after the
Effective Time to the same extent that such expenses were recognized under the
comparable Fisher Benefit Plan.
(d) Notwithstanding anything in this Agreement to the contrary,
no provision of this Agreement shall be deemed to (i) guarantee employment for
any period of time for, or preclude the ability of either party to terminate,
any Fisher Employee for any reason or (ii) subject to the limitations and
requirements specifically set forth in this Section 5.11, require either party
to continue any Thermo Electron Benefit Plan or Fisher Benefit Plan or prevent
the amendment, modification or termination thereof after the Effective Time.
-70-
(e) Without limiting the generality of the foregoing, as of the
Effective Time, Thermo Electron shall cause the Surviving Corporation and its
Subsidiaries to honor in accordance with their terms all employment, change in
control, severance and other compensation agreements and arrangements existing
prior to the execution of this Agreement which are between Fisher or any
Subsidiary and any director, officer or employee thereof and set forth in
Section 5.11(e) of the Fisher Disclosure Schedule (each a "Fisher Executive
Agreement"); provided, that, nothing herein shall prevent Thermo Electron from
amending any such agreement or plan in accordance with its terms, including such
amendments as may be necessary to avoid the imposition of a tax under Section
409A of the Code. Fisher and Thermo Electron hereby agree that the occurrence of
the Closing shall constitute a "Change in Control" for purposes of any Fisher
Executive Agreement and all Fisher Benefit Plans and related trusts set forth in
Section 5.11(e) of the Fisher Disclosure Schedule.
(f) Fisher shall be entitled to pay or provide for cash bonus
payments in an aggregate amount not to exceed the amount set forth in Section
5.11(f) of the Fisher Disclosure Schedule, to such individuals, in such amounts
and upon such terms and conditions as Fisher may determine consistent with such
schedule.
(g) As soon as practicable following the date hereof (but in any
event within 30 days hereof), the Board of Directors of Thermo Electron shall,
in consultation with Fisher and with Fisher's approval (which shall not be
unreasonably withheld), establish a long-term incentive compensation program for
Thermo Electron senior management, which awards shall provide each such employee
with unvested long-term incentive compensation that is comparable in aggregate
value to the currently unvested (but with accelerated vesting upon the
consummation of the transactions contemplated by this Agreement) equity-based
and other long-term incentive compensation that is now held by such employee.
(h) Following the date hereof, but in no event later that 30 days
following the date hereof, Fisher shall take action with respect to the plan
identified in Section 5.11(h) of the Fisher Disclosure Schedule in the manner
set forth in such Schedule.
SECTION 5.12. Honoring of Collective Bargaining Agreements; Represented
Employees. With respect to any continuing employee whose terms and conditions of
employment are governed by any of the collective bargaining agreements listed on
Section 3.1(h)(ii) of the Fisher Disclosure Schedule (each a "Represented
Employee"), Thermo Electron agrees to honor or cause to be honored the
collective bargaining agreements listed on Section 3.1(h)(ii) of the Fisher
Disclosure Schedule as of the Closing Date and to continue all terms and
conditions of employment applicable to such Represented Employees under their
respective collective bargaining agreements through the expiration, modification
or termination of such agreements in conformity with Applicable Law.
SECTION 5.13. Affiliates. Fisher shall use its reasonable efforts to
cause each Person who is, in Fisher's reasonable judgment, an "affiliate" of
Fisher within the meaning of Rule 145 promulgated under the Securities Act
("Rule 145 Affiliates") to deliver to Thermo Electron, as soon as reasonably
practicable and in any event prior to the meeting of Fisher stockholders to be
held pursuant to Section 5.1(b), a written agreement substantially in the form
attached as Exhibit 5.13. Thermo Electron shall be entitled to place appropriate
legends
-71-
(reasonably acceptable to Fisher) on the certificates evidencing any shares of
Thermo Electron Common Stock to be received by Rule 145 Affiliates in the Merger
reflecting the restrictions set forth in Rule 145 promulgated under the
Securities Act and to issue appropriate stop transfer instructions to the
transfer agent for Thermo Electron Common Stock (provided, that such legends or
stop transfer instructions shall be removed, one year after the Effective Time,
upon the request of any holder of shares of Thermo Electron Common Stock issued
in the Merger if such holder is not then a Rule 145 Affiliate).
SECTION 5.14. Notification of Certain Matters. Thermo Electron shall
give prompt notice to Fisher and Fisher shall give prompt notice to Thermo
Electron, as the case may be, of the occurrence, or failure to occur, of any
event, which occurrence or failure to occur would reasonably be expected to
cause (a)(i) any representation or warranty of such party contained in this
Agreement that is qualified as to "materiality" or "Material Adverse Effect" to
be untrue or inaccurate in any respect or (ii) any other representation or
warranty of such party contained in this Agreement that is not qualified as to
"materiality" or "Material Adverse Effect" to be untrue or inaccurate in any
material respect, in each case at any time from and after the date of this
Agreement until the Effective Time, or (b) any material failure of Thermo
Electron and the Merger Sub or Fisher, as the case may be, to comply with or
satisfy any covenant, condition or agreement to be complied with or satisfied by
it under this Agreement. In addition, Thermo Electron shall give prompt notice
to Fisher and Fisher shall give prompt notice to Thermo Electron, as the case
may be, of any change or event having, or which would reasonably be expected to
have, a Material Adverse Effect on such party and its Subsidiaries, taken as a
whole, or which would reasonably be expected to result in the failure of any of
the conditions set forth in Article VI to be satisfied. Notwithstanding the
above, the delivery of any notice pursuant to this Section 5.14 will not limit
or otherwise affect the remedies available hereunder to the party receiving such
notice or the conditions to such party's obligation to consummate the Merger.
SECTION 5.15. Section 16 Matters. Prior to the Effective Time, each of
Thermo Electron and Fisher shall use their reasonable best efforts to take all
such steps as may be required (to the extent permitted under Applicable Laws) to
cause any dispositions of Fisher Common Stock (including derivative securities)
or acquisitions of Thermo Electron Common Stock (including derivative securities
with respect to Thermo Electron Common Stock) resulting from the transactions
contemplated by this Agreement by each individual who is subject to the
reporting requirements of Section 16(a) of the Exchange Act with respect to
Fisher to be exempt under Rule 16b-3 promulgated under the Exchange Act.
SECTION 5.16. State Takeover Laws. Prior to the Effective Time, neither
Fisher nor Thermo Electron shall take any action to render inapplicable, or to
exempt any third Person from, any state takeover law or state law that purports
to limit or restrict business combinations or the ability to acquire or vote
shares of capital stock unless (i) required to do so by order of a court of
competent jurisdiction or (ii) Thermo Electron's or Fisher's Board of Directors,
as the case may be, has concluded in good faith, after consultation with its
outside legal counsel, that the failure to take such action is reasonably likely
to result in a breach of its Board of Directors' fiduciary obligations to their
stockholders, respectively, under Applicable Laws.
-72-
SECTION 5.17. Reservation of Thermo Electron Common Stock. Effective at
or prior to the Effective Time, Thermo Electron shall reserve (free from
preemptive rights) out of its reserved but unissued or treasury shares of Thermo
Electron Common Stock, for the purposes of effecting the conversion of the
issued and outstanding shares of Fisher Common Stock pursuant to this Agreement,
sufficient shares of Thermo Electron Common Stock to provide for such conversion
as well as the issuance of Thermo Electron Common Stock upon the exercise or
settlement of Fisher Options and Fisher Stock Unit Awards assumed by Thermo
Electron under Section 5.11.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Conditions to Each Party's Obligation to Effect the
Merger. The obligation of each party to effect the Merger is subject to the
satisfaction or waiver at or prior to the Closing of the following conditions:
(a) Stockholder Approvals. Each of the Thermo Electron
Stockholder Approval and the Fisher Stockholder Approval shall have been
obtained.
(b) Antitrust Waiting Periods. The waiting periods (and any
extensions thereof) and any approvals applicable to the Merger under (i) the HSR
Act, and (ii) the ECMR shall have been terminated or shall have expired or shall
have been obtained, as applicable.
(c) Consents and Approvals. Other than the expirations and
approvals required by Section 6.1(b), all filings with, and all consents,
approvals and authorizations of, any Governmental Entity required to be made or
obtained by Thermo Electron, Fisher or any of their respective Subsidiaries to
consummate the Merger shall have been obtained, other than such consents,
approvals and authorizations the failure of which to be made or obtained would
not, individually or in the aggregate, have a Material Adverse Effect on Fisher
and its Subsidiaries, taken as a whole, or Thermo Electron and its Subsidiaries,
taken as a whole, respectively (determined, for purposes of this clause, after
giving effect to the Merger).
(d) No Injunctions or Restraints. No judgment, order, decree,
statute, law, ordinance, rule or regulation, or other legal restraint or
prohibition, entered, enacted, promulgated, enforced or issued by any court or
other Governmental Entity of competent jurisdiction shall be in effect that
makes illegal or prohibits the consummation of the transactions contemplated by
this Agreement.
(e) Form S-4. The Form S-4 shall have become effective under the
Securities Act prior to the mailing of the Joint Proxy Statement by each of
Thermo Electron and Fisher to their stockholders, respectively, and no stop
order or proceedings seeking a stop order shall have been initiated or, to the
Knowledge of Thermo Electron or Fisher, threatened by the SEC.
-73-
(f) Listing. The shares of Thermo Electron Common Stock issuable
to the stockholders of Fisher as provided for in Article II shall have been
authorized for listing on the NYSE upon official notice of issuance.
SECTION 6.2. Conditions to Obligations of Fisher. The obligation of
Fisher to effect the Merger is further subject to satisfaction or waiver at or
prior to the Closing of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Thermo Electron and Merger Sub set forth herein shall be true and
correct (without giving effect to any limitation as to "materiality" or
"Material Adverse Effect" set forth therein (other than the representation set
forth in Section 3.2(f)(ii), which shall be read with the Material Adverse
Effect qualification)) both when made and at and as of the Closing Date, as if
made at and as of such time (except to the extent expressly made as of an
earlier date, in which case as of such date), except where the failure of such
representations and warranties to be so true and correct (without giving effect
to any limitation as to "materiality" or "Material Adverse Effect" set forth
therein (other than the representation set forth in Section 3.2(f)(ii), which
shall be read with the Material Adverse Effect qualification)) does not have,
and would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect on Thermo Electron and its Subsidiaries, taken as a
whole.
(b) Performance of Obligations of Thermo Electron and Merger Sub.
Each of Thermo Electron and Merger Sub shall have performed, or complied with,
in all material respects all obligations required to be performed or complied
with by it under this Agreement at or prior to the Closing Date.
(c) No Material Adverse Effect. No Material Adverse Effect of
Thermo Electron and its Subsidiaries, taken as a whole, shall have occurred
since the date of this Agreement and be continuing.
(d) Officer's Certificate. Fisher shall have received an
officer's certificate duly executed by each of the Chief Executive Officer and
Chief Financial Officer of Thermo Electron to the effect that the conditions set
forth in Sections 6.2(a), (b) and (c) have been satisfied.
(e) Tax Opinion. Fisher shall have received an opinion of
Skadden, Arps, Slate, Meagher & Flom, LLP ("Fisher's Counsel"), in form and
substance reasonably satisfactory to Fisher, dated the Closing Date, to the
effect that, on the basis of facts, representations and assumptions set forth or
referred to in such opinion that are consistent with the state of facts existing
at the Effective Time, the Merger will be treated as a reorganization within the
meaning of Section 368(a) of the Code. In rendering such opinion, Fisher's
Counsel may require and rely upon representations and covenants, including those
contained in certificates of officers of Fisher, Thermo Electron and others,
reasonably satisfactory in form and substance to such counsel.
-74-
SECTION 6.3. Conditions to Obligations of Thermo Electron and Merger
Sub. The obligations of Thermo Electron and Merger Sub to effect the Merger are
further subject to satisfaction or waiver at or prior to the Closing of the
following conditions:
(a) Representations and Warranties. The representations and
warranties of Fisher set forth herein shall be true and correct (without giving
effect to any limitation as to "materiality" or "Material Adverse Effect" set
forth therein (other than the representation set forth in Section 3.1(f)(ii),
which shall be read with the Material Adverse Effect qualification)) both when
made and at and as of the Closing Date, as if made at and as of such time
(except to the extent expressly made as of an earlier date, in which case as of
such date), except where the failure of such representations and warranties to
be so true and correct (without giving effect to any limitation as to
"materiality" or "Material Adverse Effect" set forth therein (other than the
representation set forth in Section 3.1(f)(ii), which shall be read with the
Material Adverse Effect qualification)) does not have, and would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
on Fisher and its Subsidiaries, taken as a whole.
(b) Performance of Obligations of Fisher. Fisher shall have
performed, or complied with, in all material respects all obligations required
to be performed or complied with by it under this Agreement at or prior to the
Closing Date.
(c) No Material Adverse Effect. No Material Adverse Effect of
Fisher and its Subsidiaries, taken as a whole, shall have occurred since the
date of this Agreement and be continuing.
(d) Officer's Certificate. Thermo Electron shall have received an
officer's certificate duly executed by each of the Chief Executive Officer and
Chief Financial Officer of Fisher to the effect that the conditions set forth in
Sections 6.3(a), (b) and (c) have been satisfied.
(e) Tax Opinion. Thermo Electron shall have received an opinion
of Wachtell, Lipton, Rosen & Katz ("Thermo Electron's Counsel"), in form and
substance reasonably satisfactory to Thermo Electron, dated the Closing Date, to
the effect that, on the basis of facts, representations and assumptions set
forth or referred to in such opinion that are consistent with the state of facts
existing at the Effective Time, the Merger will be treated as a reorganization
within the meaning of Section 368(a) of the Code. In rendering such opinion,
Thermo Electron's Counsel may require and rely upon representations and
covenants, including those contained in certificates of officers of Thermo
Electron, Fisher and others, reasonably satisfactory in form and substance to
such counsel.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
SECTION 7.1. Termination. This Agreement may be terminated at any time
prior to the Effective Time, whether before or after approval of the matters
presented in connection with the Merger by the stockholders of Thermo Electron
or Fisher:
-75-
(a) by mutual written consent of Fisher and Thermo Electron, if
the Board of Directors of each so determines;
(b) by written notice of either Fisher or Thermo Electron (as
authorized by the Board of Directors of Fisher or Thermo Electron, as
applicable):
(i) if the Merger shall not have been consummated by 365 days
from the date of this Agreement (the "Outside Date");
(ii) if a Governmental Entity that is of competent
jurisdiction shall have issued a final and nonappealable order, decree or
ruling or taken any other action (including the failure to have taken an
action), having the effect of permanently restraining, enjoining or
otherwise prohibiting the Merger;
(iii) if the Fisher Stockholder Approval shall not have been
obtained at the Fisher Stockholders' Meeting, or at any adjournment or
postponement thereof, at which the vote to obtain the Fisher Stockholder
Approval was taken; or
(iv) if the Thermo Electron Stockholder Approval shall not
have been obtained at the Thermo Electron Stockholders' Meeting, or at any
adjournment or postponement thereof, at which the vote to obtain the
Thermo Electron Stockholder Approval was taken;
(c) by Fisher (as authorized by its Board of Directors) upon a
breach of any representation, warranty, covenant or agreement on the part of
Thermo Electron set forth in this Agreement, or if any representation or
warranty of Thermo Electron shall have become untrue, in either case such that
the conditions set forth in Section 6.2(a) or Section 6.2(b) would not be
satisfied as of the time of such breach or as of the time such representation or
warranty shall have become untrue and in any such case such breach shall be
incapable of being cured or shall not have been cured in all material respects
within 10 days after written notice thereof shall have been received by Thermo
Electron;
(d) by Thermo Electron (as authorized by its Board of Directors)
upon a breach of any representation, warranty, covenant or agreement on the part
of Fisher set forth in this Agreement, or if any representation or warranty of
Fisher shall have become untrue, in either case such that the conditions set
forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as of the time
of such breach or as of the time such representation or warranty shall have
become untrue and in any such case such breach shall be incapable of being cured
or shall not have been cured in all material respects within 10 days after
written notice thereof shall have been received by Fisher;
(e) by Fisher (as authorized by its Board of Directors) if the
Board of Directors of Thermo Electron, for any reason, (i) shall have failed to
recommend in the Joint Proxy Statement a vote in favor of the Stock Issuance and
the Charter Amendment, or (ii) in a manner adverse to Fisher, (x) withdrawn,
modified or qualified, or proposed to withdraw, modify or qualify, the
recommendation by such Board of Directors in favor of the Stock Issuance and the
Charter Amendment to Thermo Electron's stockholders, (y) taken any public action
or made any public statement in connection with the meeting of Thermo Electron
stockholders to be held
-76-
pursuant to Section 5.1(b), inconsistent with such recommendation or (z)
recommended any Alternative Transaction (or, in the case of clause (ii),
resolved to take any such action), whether or not permitted by the terms hereof;
or
(f) by Thermo Electron (as authorized by its Board of Directors)
if the Board of Directors of Fisher, for any reason, (i) shall have failed to
recommend in the Joint Proxy Statement the approval and adoption of this
Agreement and the Merger, or (ii) in a manner adverse to Thermo Electron, (x)
withdrawn, modified or qualified, or proposed to withdraw, modify or qualify,
the recommendation by such Board of Directors in favor of the approval and
adoption of this Agreement and the Merger to Fisher's stockholders, (y) taken
any public action or made any public statement in connection with the meeting of
Fisher stockholders to be held pursuant to Section 5.1(b), inconsistent with
such recommendation or (z) recommended any Alternative Transaction (or, in the
case of clause (ii), resolved to take any such action), whether or not permitted
by the terms hereof.
SECTION 7.2. Effect of Termination and Payment.
(a) In the event of termination of this Agreement as provided in
Section 7.1 hereof and the payment of a Thermo Electron Termination Fee or
Fisher Termination Fee, if any, this Agreement shall forthwith become void and
have no effect and there shall be no liability of any nature whatsoever on the
part of any of the parties, except (i) as set forth in Sections 5.3(b), 5.6,
this Section 7.2, as well as Article VIII (other than Section 8.1) to the extent
applicable to such surviving sections, each of which shall survive termination
of this Agreement, and (ii) that nothing herein shall relieve any party from any
further liability for any willful or intentional breach of any representation,
warranty, covenant or agreement of such party contained herein. No termination
of this Agreement shall affect the obligations of the parties contained in the
CDA, all of which obligations shall survive termination of this Agreement in
accordance with their terms. Subject to the foregoing provisions of this Section
7.2(a), payments made pursuant to this Section 7.2 shall be in addition to any
other rights, remedies and relief of the parties hereto or with respect to the
subject matter of this Agreement.
(b) Thermo Electron shall pay Fisher, by wire transfer of
immediately available funds, the sum of $200 million (the "Thermo Electron
Termination Fee") if this Agreement is terminated as follows:
(i) if Fisher shall terminate this Agreement pursuant to
Section 7.1(e), then Thermo Electron shall pay the Thermo Electron
Termination Fee on the business day following such termination;
(ii) if either party shall terminate this Agreement pursuant
to (A) Section 7.1(b)(i) and at the time of such termination the Thermo
Electron Stockholder Approval has not been obtained, or (B) Section
7.1(b)(iv), or Fisher shall terminate this Agreement pursuant to Section
7.1(c), and in each such case at any time after the date of this Agreement
and before such termination an Alternative Transaction Proposal with
respect to Thermo Electron shall have been publicly proposed or publicly
disclosed or, solely in the case of a termination under Section 7.1(c),
otherwise communicated to the senior management or Board of Directors of
Thermo Electron, and
-77-
within 12 months of the date of such termination of this Agreement, Thermo
Electron or any of its Subsidiaries executes any definitive agreement with
respect to, or consummates any Alternative Transaction, then Thermo
Electron shall pay the Thermo Electron Termination Fee upon the date of
such execution or consummation (it being understood that in no event shall
Thermo Electron be required to pay the fee referred to in this Section
7.2(b) on more than one occasion).
If Thermo Electron fails to pay all amounts due to Fisher on the dates
specified, then Thermo Electron shall pay all costs and expenses (including
legal fees and expenses) incurred by Fisher in connection with any action or
proceeding (including the filing of any lawsuit) taken by it to collect such
unpaid amounts, together with interest on such unpaid amounts at the prime
lending rate prevailing at such time, as published in the Wall Street Journal,
from the date such amounts were required to be paid until the date actually
received by Fisher.
(c) Fisher shall pay Thermo Electron, by wire transfer of
immediately available funds, the sum of $300 million (the "Fisher Termination
Fee") if this Agreement is terminated as follows:
(i) if Thermo Electron shall terminate this Agreement
pursuant to Section 7.1(f) then Fisher shall pay the Fisher Termination
Fee on the business day following such termination;
(ii) if either party shall terminate this Agreement pursuant
to (A) Section 7.1(b)(i) and at the time of such termination the Fisher
Stockholder Approval has not been obtained, or (B) Section 7.1(b)(iii), or
Thermo Electron shall terminate this Agreement pursuant to Section 7.1(d),
and in each such case at any time after the date of this Agreement and
before such termination an Alternative Transaction Proposal with respect
to Fisher shall have been publicly proposed or publicly disclosed or,
solely in the case of a termination under Section 7.1(d), otherwise
communicated to the senior management or Board of Directors of Fisher, and
within 12 months of the date of such termination of this Agreement, Fisher
or any of its Subsidiaries executes any definitive agreement with respect
to, or consummates any Alternative Transaction, then Fisher shall pay the
Fisher Termination Fee upon the date of such execution or consummation (it
being understood that in no event shall Fisher be required to pay the fee
referred to in this Section 7.2(c) on more than one occasion).
If Fisher fails to pay all amounts due to Thermo Electron on the dates
specified, then Fisher shall pay all costs and expenses (including legal fees
and expenses) incurred by Thermo Electron in connection with any action or
proceeding (including the filing of any lawsuit) taken by it to collect such
unpaid amounts, together with interest on such unpaid amounts at the prime
lending rate prevailing at such time, as published in The Wall Street Journal,
from the date such amounts were required to be paid until the date actually
received by Thermo Electron.
SECTION 7.3. Amendment. Subject to compliance with Applicable Laws,
this Agreement may be amended by the parties at any time before or after the
Thermo Electron Stockholder Approval or the Fisher Stockholder Approval;
provided, however, that after the occurrence of either the Fisher Stockholder
Approval or the Thermo Electron Stockholder
-78-
Approval there may not be, without further approval of the stockholders of
Fisher and Thermo Electron, any amendment of this Agreement that changes the
amount or the form of the consideration to be delivered to the holders of Fisher
Common Stock hereunder, or which by Applicable Laws otherwise expressly requires
the further approval of such stockholders. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto and duly approved by the parties' respective Boards of Directors or a
duly designated committee thereof.
SECTION 7.4. Extension; Waiver. At any time prior to the Effective
Time, a party may, subject to the proviso of Section 7.3 (and for this purpose
treating any waiver referred to below as an amendment), (a) extend the time for
the performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties of the
other parties contained in this Agreement or in any document delivered pursuant
to this Agreement or (c) waive compliance by the other party hereto with any of
the agreements or conditions contained in this Agreement. Any agreement on the
part of a party to any such extension or waiver shall be valid only if set forth
in an instrument in writing signed on behalf of such party. Any extension or
waiver given in compliance with this Section 7.4 or failure to insist on strict
compliance with an obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1. Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time. This Section 8.1
shall not limit the survival of any covenant or agreement of the parties in the
Agreement which by its terms contemplates performance after the Effective Time.
SECTION 8.2. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, sent via facsimile (receipt confirmed) or sent by
a nationally recognized overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Fisher to:
Fisher Scientific International, Inc.
One Liberty Lane
Hampton, New Hampshire 03842
Fax: (603) 929-2379
Attention: Sarah McConnell
-79-
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Fax: (917) 777-3860
Attention: Ralph Arditi
(b) if to Thermo Electron or Merger Sub, to:
Thermo Electron Corporation
81 Wyman Street
Waltham, Massachusetts 02454
Fax: (781) 622-1207
Attention: Seth Hoogasian
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 W. 52nd Street
New York, NY 10019
Fax: (212) 403-2000
Attention: Craig M. Wasserman
SECTION 8.3. Definitions. For purposes of this Agreement:
(a) An "Affiliate" of any Person means another Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such first Person, where
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management policies of a Person, whether through
the ownership of voting securities, by contract, as trustee or executor, or
otherwise;
(b) An "Alternative Transaction" means any (i) transaction
pursuant to which any Person (or group of Persons), directly or indirectly,
acquires or would acquire more than 20% of the outstanding shares of Fisher
Common Stock or Thermo Electron Common Stock, as applicable, or outstanding
voting power or of any new series or new class of preferred stock that would be
entitled to a class or series vote with respect to the Merger, whether from
Fisher or Thermo Electron or pursuant to a tender offer or exchange offer or
otherwise (provided that, for purposes of "Alternative Transaction" as such term
is used in Sections 7.2(b)(ii) and 7.2(c)(ii), the reference to "20%" in this
clause (i) shall be substituted with "25%" in the case of any acquisition by a
Person or affiliated group of Persons, or "38.5%" in the case of an aggregated
acquisition by an unaffiliated group of Persons in a widely dispersed offering),
(ii) transaction pursuant to which any Person (or group of Persons) acquires or
would acquire control of assets (including for this purpose the outstanding
equity securities of subsidiaries of Fisher or Thermo Electron, as applicable,
and securities of the entity surviving any merger or business combination
including any of Fisher's or Thermo Electron's Subsidiaries) of Fisher or Thermo
-80-
Electron, or any of their respective subsidiaries representing more than 20% of
the fair market value of all of the assets, net revenues or net income of Fisher
and its Subsidiaries, taken as a whole, or Thermo Electron and its Subsidiaries,
taken as a whole, as applicable, immediately prior to such transaction, or (iii)
other merger, share exchange, consolidation, business combination,
recapitalization or similar transaction (other than the Merger) involving Fisher
or Thermo Electron or any of their respective subsidiaries, as applicable, as a
result of which the holders of shares of Fisher Common Stock or Thermo Electron
Common Stock, respectively, immediately prior to such transaction would not, in
the aggregate, own more than 61.5% of each of the outstanding shares of common
stock and the outstanding voting power of the surviving or resulting entity in
such transaction immediately after the consummation thereof, in each case other
than the transactions contemplated by this Agreement;
(c) "Contract" shall mean any written, oral or other agreement,
contract, subcontract, settlement agreement, lease, sublease, binding
understanding, instrument, note, option, bond, mortgage, indenture, trust
document, loan or credit agreement, warranty, purchase order, license,
sublicense, insurance policy, benefit plan or legally binding commitment or
undertaking of any nature, as in effect as of the date hereof or as may
hereinafter be in effect;
(d) "Environmental Laws" means any and all federal, state,
foreign, interstate, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decisions, injunctions, decrees, requirements of
any Governmental Entity, any and all common law requirements, rules and bases of
liability regulating, relating to, or imposing liability or standards of conduct
concerning pollution, Hazardous Materials or protection of human health, safety
or the environment, as currently in effect, including, but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
ss. 9601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. ss. 1801
et seq., the Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901 et seq.,
the Clean Water Act, 33 U.S.C. ss. 1251 et seq., the Clean Air Act, 42 U.S.C.
ss. 7401 et seq., the Toxic Substances Control Act, 15 U.S.C. ss. 2601 et seq.,
the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C., ss. 136 et
seq., Occupational Safety and Health Act 29 U.S.C. ss. 651 et seq., the Oil
Pollution Act of 1990, 33 U.S.C. ss. 2701 et seq., and the Endangered Species
Act (16 U.S.C. ss. 1531 et seq.) as such laws have been amended or supplemented,
and the regulations promulgated pursuant thereto, and all analogous state or
local statutes;
(e) "Environmental Liabilities" with respect to any Person means
any and all liabilities of or relating to such Person or any of its Subsidiaries
(including any entity which is, in whole or in part, a predecessor of such
Person or any of such Subsidiaries), which (i) arise under or relate to matters
covered by Environmental Laws and (ii) relate to actions occurring or conditions
existing on or prior to the Closing Date;
(f) "Hazardous Materials" means any materials or wastes, defined,
listed, classified or regulated as hazardous, toxic, a pollutant, a contaminant
or dangerous in or under any Environmental Laws including, but not limited to,
petroleum, petroleum products, friable asbestos, urea formaldehyde, radioactive
materials and polychlorinated biphenyls;
(g) "Intellectual Property" shall mean trademarks, service marks,
trade names, brand names, certification marks, designs, logos and slogans,
commercial symbols,
-81-
business name registrations, domain names, trade dress and other indications of
origin and general intangibles of like nature, the goodwill associated with the
foregoing and registrations in any domestic or foreign jurisdiction of, and
applications in any such jurisdiction to register, the foregoing, including any
extension, modification or renewal of any such registration or application;
inventions, discoveries and biological materials, whether patentable or not and
whether or not reduced to practice, in any domestic or foreign jurisdiction;
patents, applications for patents (including, without limitation, divisions,
continuations, continuations-in-part, reissues and renewal applications), and
any renewals, extensions, supplementary protection certificates or reissues
thereof, in any such jurisdiction; research and development data (including
without limitation the results of research into and development of drug or
biologic-based products and drug delivery systems), formulae, know-how,
proprietary processes, algorithms, models and methodologies, technical
information, designs, procedures, laboratory notebooks, trade secrets and
confidential information and rights in any domestic or foreign jurisdiction to
limit the use or disclosure thereof by any Person; writings and other works of
authorship of any type (including the content contained on any web site),
whether copyrightable or not, in any such jurisdiction; computer software
(whether in source code or object code form), databases, compilations and data;
and registrations or applications for registration of copyrights in any domestic
or foreign jurisdiction, and any renewals or extensions thereof; and any similar
intellectual property or proprietary rights;
(h) "Knowledge" means, with respect to Fisher, the actual
knowledge of the individuals listed on Section 8.3(h) of the Fisher Disclosure
Schedule and, with respect to Thermo Electron, the actual knowledge of the
individuals listed on Section 8.3(h) of the Thermo Electron Disclosure Schedule;
(i) "Material Adverse Effect" means, when used with respect to
Thermo Electron or Fisher and their respective Subsidiaries, any change, event,
violation, inaccuracy, circumstance or effect (any such item, an "Effect") that,
individually or when taken together with all other Effects that have occurred
prior to the date of determination of the occurrence of the Material Adverse
Effect, is or is reasonably expected (i) to be materially adverse to the
business, assets (including intangible assets), liabilities, capitalization,
condition (financial or otherwise) or results of operations of such party and
its Subsidiaries, taken as a whole, or (ii) to impair in any material respect
the ability of such party to perform its obligations under this Agreement or
prevent or materially delay the consummation by such party of any of the
transactions contemplated hereby; provided, however, that, in no event shall any
of the following, alone or in combination, be deemed to constitute, nor shall
any of the following be taken into account in determining whether there has been
or will be a Material Adverse Effect on any party and such party's respective
Subsidiaries, taken as a whole: (A) events or circumstances generally affecting
the industry in which Thermo Electron and Fisher operate, and which do not have
a materially disproportionate effect on Thermo Electron or Fisher, as the case
may be, (B) U.S. or global economic conditions, or (C) the execution, delivery,
announcement or performance of this Agreement or the consummation of any
transaction contemplated hereby or (D) changes in Applicable Laws or GAAP;
(j) "Multiemployer Plan" means a "multiemployer pension plan," as
that term is defined in Section 3(37) of ERISA;
-82-
(k) "Permitted Liens" means (i) mechanics', carriers', workers'
or repairmen's liens arising in the ordinary course of business and securing
payments or obligations that are not delinquent, (ii) Liens for Taxes,
assessments and other similar governmental charges which are not due and payable
and (iii) Liens that arise under zoning, land use and other similar laws and
other imperfections of title or encumbrances, if any, which do not materially
affect the marketability of the property subject thereto and do not materially
impair the use of the property subject thereto as presently used;
(l) "Person" means an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity;
(m) a "Subsidiary" of any Person means another Person, an amount
of the voting securities, other voting ownership or voting partnership interests
of which is sufficient to elect at least a majority of its Board of Directors or
other governing body is (or, if there are no such voting interests, more than
50% of the equity interests of which are) owned directly or indirectly by such
first Person.
SECTION 8.4. Terms Defined Elsewhere. The following terms are defined
elsewhere in this Agreement, as indicated below:
Term Section
- ---- -------
Agreement.................................................... Preamble
Alternative Transaction Proposal............................. 4.2(a)
Applicable Laws.............................................. 3.1(g)(ii)
Approval..................................................... 3.1(i)(ii)
Benefit Plans................................................ 3.1(i)(i)
CDA.......................................................... 4.2(a)
Certificate of Merger........................................ 1.3
Certificates................................................. 2.2(b)
Charter Amendment............................................ 3.2(c)(i)
Closing...................................................... 1.2
Closing Date................................................. 1.2
Code......................................................... Recitals
Continuing Fisher Directors.................................. 1.8
Continuing Thermo Electron Directors......................... 1.8
DGCL......................................................... Recitals
ECMR......................................................... 3.1(c)(v)(A)
Effect....................................................... 8.3(i)
Effective Time............................................... 1.3
ERISA........................................................ 3.1(i)(i)
ERISA Affiliate.............................................. 3.1(i)(v)
-83-
Exchange Act................................................. 3.1(c)(v)(B)(2)
Exchange Agent............................................... 2.2(a)
Exchange Fund................................................ 2.2(a)
Exchange Ratio............................................... 2.1(a)
FDA.......................................................... 3.1(g)(i)
FDCA......................................................... 3.1(g)(i)
Fisher....................................................... Preamble
Fisher Balance Sheet......................................... 3.1(d)(iv)
Fisher Benefit Plans......................................... 3.1(i)(i)
Fisher By-Laws............................................... 3.1(a)(ii)
Fisher Charter............................................... 3.1(a)(ii)
Fisher Common Stock.......................................... 2.1
Fisher Convertible Debentures................................ 3.1(b)(i)
Fisher Deferred Compensation Plans........................... 3.1(b)(i)
Fisher Disclosure Schedule................................... 3.1
Fisher Employees............................................. 5.11(c)
Fisher Executive Agreement................................... 5.11(e)
Fisher Foreign Plan.......................................... 3.1(i)(ix)
Fisher Leased Real Property.................................. 3.1(s)
Fisher Material Contract..................................... 3.1(r)(i)
Fisher Material Subsidiaries................................. 3.1(a)(iii)
Fisher Option................................................ 2.1(c)
Fisher Organizational Documents.............................. 3.1(a)(ii)
Fisher Owned Real Property................................... 3.1(s)
Fisher Permits............................................... 3.1(g)(i)
Fisher Preferred Stock....................................... 3.1(b)(i)
Fisher Purchase Plan......................................... 2.1(d)
Fisher Rights Agreement...................................... 4.1(a)(i)
Fisher SEC Documents......................................... 3.1(d)(i)
Fisher Stockholder Approval.................................. Recitals
Fisher Stockholders' Meeting................................. 5.1(b)
Fisher Stock Plans........................................... 3.1(b)(i)
Fisher Stock Unit Awards..................................... 2.1(d)
Fisher Subsidiary Organizational Documents................... 3.1(a)(ii)
Fisher Termination Fee....................................... 7.2(c)
Fisher's Counsel............................................. 6.2(e)
Form S-4..................................................... 3.1(e)
-84-
Funded Retirement Plan....................................... 3.1(i)(v)
GAAP......................................................... 3.1(d)(iii)
Goldman...................................................... 3.1(p)
Governmental Entity.......................................... 3.1(c)(v)
HSR Act...................................................... 3.1(c)(v)(A)
Indemnified Parties.......................................... 5.5(a)
IRS.......................................................... 3.1(i)(i)
Joint Proxy Statement........................................ 3.1(c)(v)(B)(1)
Lazard....................................................... 3.1(p)
Lehman Brothers.............................................. 3.2(p)
Liens........................................................ 3.1(a)(iii)
Merger....................................................... Recitals
Merger Consideration......................................... 2.1(a)
Merger Sub................................................... Preamble
NLRB......................................................... 3.1(h)(ii)(C)
NYSE......................................................... 2.1(d)
Outside Date................................................. 7.1(b)(i)
Recommendations.............................................. Recitals
Representatives.............................................. 4.2(a)
Represented Employee......................................... 5.12
Rothschild, Inc.............................................. 3.2(p)
Rule 145 Affiliates.......................................... 5.13
SEC.......................................................... 3.1(c)(v)(B)
Securities Act............................................... 3.1(d)(i)
SOX.......................................................... 3.1(d)(i)
Stock Issuance............................................... 3.2(c)(i)
Surviving Corporation........................................ 1.1
Tax Authority................................................ 3.1(j)(xi)
Tax Return................................................... 3.1(j)(xi)
Taxes........................................................ 3.1(j)(xi)
Thermo Electron.............................................. Preamble
Thermo Electron Balance Sheet................................ 3.2(d)(iv)
Thermo Electron Benefit Plans................................ 3.2(i)(i)
Thermo Electron By-Laws...................................... 3.2(a)(ii)
Thermo Electron Charter...................................... 3.2(a)(ii)
Thermo Electron Common Stock................................. 2.1(a)
Thermo Electron Convertible Debentures....................... 3.2(b)(i)(D)
-85-
Thermo Electron Disclosure Schedule.......................... 3.2
Thermo Electron Foreign Plan................................. 3.2(i)(ix)
Thermo Electron Leased Real Property......................... 3.2(s)
Thermo Electron Material Contract............................ 3.2(r)(i)
Thermo Electron Material Subsidiaries........................ 3.2(a)(iii)
Thermo Electron Options...................................... 3.2(b)(i)(E)
Thermo Electron Organizational Documents..................... 3.2(a)(ii)
Thermo Electron Owned Real Property.......................... 3.2(s)
Thermo Electron Permits...................................... 3.2(g)(i)
Thermo Electron Preferred Stock.............................. 3.2(b)(i)
Thermo Electron Purchase Plan................................ 3.2(b)(ii)
Thermo Electron Restricted Stock............................. 3.2(b)(i)(A)
Thermo Electron Restricted Stock Units....................... 3.2(b)(i)(E)
Thermo Electron Rights Agreement............................. 4.1(a)(ii)
Thermo Electron SEC Documents................................ 3.2(d)(i)
Thermo Electron Stock Plans.................................. 3.2(b)(i)(A)
Thermo Electron Stockholder Approval......................... Recitals
Thermo Electron Stockholders' Meeting........................ 5.1(b)
Thermo Electron Subsidiary Organizational Documents.......... 3.2(a)(ii)
Thermo Electron Termination Fee.............................. 7.2(b)
Thermo Electron's Counsel.................................... 6.3(e)
Voting Debt.................................................. 3.1(b)(iii)
WARN Act..................................................... 3.1(h)(i)
SECTION 8.5. Interpretation. When a reference is made in this Agreement
to an Article, Section or Exhibit, such reference shall be to an Article or
Section of, or an Exhibit to, this Agreement unless otherwise indicated.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Any agreement, instrument or statute
defined or referred to herein or in any agreement or instrument that is referred
to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession of
comparable successor statutes and references to all attachments thereto
-86-
and instruments incorporated therein. References to a Person are also to its
permitted successors and assigns.
SECTION 8.6. Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
SECTION 8.7. Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the CDA and the documents and instruments referred to
herein) (a) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter of this Agreement and neither party is relying on
any other oral or written representation, agreement or understanding and (b)
except for the provisions of Section 5.5 (which are intended to benefit the
Indemnified Parties, including Indemnified Parties who or which are not parties
hereto), is not intended to confer upon any Person other than the parties any
rights or remedies.
SECTION 8.8. Governing Law. This Agreement and any disputes arising out
of or related to this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflict of laws thereof,
except to the extent that the DGCL applies to the Merger or the Delaware General
Corporation Law applies to the Charter Amendment.
SECTION 8.9. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by either of the parties hereto without
the prior written consent of the other party. Any assignment in violation of the
preceding sentence shall be void. Subject to the preceding two sentences, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
SECTION 8.10. Consent to Jurisdiction. Each of the parties hereto (a)
consents to submit itself to the personal jurisdiction of any federal court
located in the State of New York or any New York state court in the event any
dispute arises out of this Agreement or any of the transactions contemplated by
this Agreement, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
and (c) agrees that it will not bring any action relating to this Agreement or
any of the transactions contemplated by this Agreement in any court other than a
federal court sitting in the State of New York or a New York state court.
SECTION 8.11. Headings, etc. The headings and table of contents
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
SECTION 8.12. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect, insofar as the foregoing can be
accomplished without materially affecting the economic benefits
-87-
anticipated by the parties to this Agreement. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible to the fullest
extent permitted by Applicable Laws in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 8.13. Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or of any other right. All rights and remedies existing
under this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
SECTION 8.14. Waiver of Jury Trial. EACH OF THERMO ELECTRON, MERGER SUB
AND FISHER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THE ACTIONS OF THERMO ELECTRON, MERGER SUB OR FISHER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.
SECTION 8.15. Specific Performance. The parties agree that irreparable
damage would occur and that the parties would not have any adequate remedy at
law in the event that any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any federal court located in the
State of New York or in New York state court, this being in addition to any
other remedy to which they are entitled at law or in equity.
[Remainder of Page Intentionally Left Blank.]
-88-
IN WITNESS WHEREOF, Fisher, Thermo Electron and Merger Sub have caused
this Agreement to be executed under seal by their respective officers thereunto
duly authorized, all as of the date first written above.
FISHER SCIENTIFIC INTERNATIONAL INC.
By: /s/ Paul M. Meister
------------------------------
Name: Paul M. Meister
Title: Vice Chairman
THERMO ELECTRON CORPORATION
By: /s/ Marijn E. Dekkers
------------------------------
Name: Marijn E. Dekkers
Title: President and Chief Executive Officer
TRUMPET MERGER CORPORATION
By: /s/ Seth H. Hoogasian
------------------------------
Name: Seth H. Hoogasian
Title: President