STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), dated as
of November 4, 1996, between Sid Instruments, Inc., a company
registered under the laws of Delaware, U.S.A., (the "Seller) and
ThermoQuest Corporation, a company registered under the laws of
Delaware, U.S.A. (the "Buyer").
WHEREAS , the Buyer desires to purchase from the Seller
and the Seller desires to sell to the Buyer ,all of the issued
and outstanding shares of capital stock of Fisons Instruments
S.p.A., a company registered under the laws of Italy which,
subject to the Italian court approval, has changed its corporate
name into ThermoQuest Italia S.p.A. (the "Company") owned by the
Seller, upon the terms and subject to the conditions set forth
herein (the "Stock Purchase");
WHEREAS, the Company is engaged in the import, export
and marketing of reagents instruments to be used for chemical
analysis and other applications as more accurately described in
article 5 of the Company by-laws (the "Business") and has already
transferred its ARL and ELEMENTAL businesses to Unicam Italia
S.p.A.;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
As used in this Agreement, the following terms have the
following respective meanings:
"Closing" means the consummation of the Stock Purchase.
" Shares" means all of the 366,671 shares of capital stock of the
Company, par value Lit. 20,000 per share, representing all of the
issued and outstanding share capital of the Company.
ARTICLE 2
SALE OF STOCK
2.1 Stock Purchase. On the basis of the representations and
warranties, covenants and agreements set forth herein, the Seller
hereby sells to the Buyer, and the Buyer hereby purchases from
the Seller, the Shares with all dividend and other economic
rights attached thereto, if any, effective as from October 1,
1996. The Buyer will wire transfer, in immediately available
funds, to the account specified by the Seller the amount of
$20,478,000 with respect to the Shares (the "Purchase Price").
As soon as possible upon payment of the Purchase Price, the
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Seller will cause (a) its respective duly authorised
representative to (i) endorse the Shares to the Buyer according
to the formalities provided by Italian Law; and (ii) deliver such
duly endorsed Shares to the Buyer or its representatives; and (b)
a director of the Company to make an annotation in the
shareholders book of the Company of the Buyer as the new
shareholder of the Company.
2.2. Price Adjustment . The Buyer and Seller acknowledge and
agree that the Purchase Price represents the sum of (i) the net
tangible assets of the Company (assumed to be $7,095,000 ) as of
the date of the Seller's acquisition of the Shares as part of the
acquisition on March 29, 1996 by the Thermo Instrument Systems
Inc. ("THI") and its subsidiaries of certain businesses of Fisons
plc (the "Fisons Businesses") pursuant to the Amended and
Restated Asset and Stock Purchase Agreement dated as of March 29,
1996 among the THI, Thermo Electron Corporation and Fisons plc
(the "Restated Agreement"), plus (ii) a percentage of the total
goodwill associated with THI's acquisition of the Fisons
Businesses equal to the sales of the Carlo Erba chromatography
business of the Company for the 1994 and 1995 fiscal years
relative to the total sales of the Fisons Businesses for such
years (the "CE Percentage"), plus (iii) the CE Percentage of the
total costs incurred by THI in acquiring the Fisons Businesses
and in restructuring the sales and service organization of the
Fisons Businesses (the "Restructuring Costs") . The parties
acknowledge that the purchase price paid by the THI for the
Fisons Businesses is subject to a post-closing adjustment based
on the difference between the value of the net tangible assets of
the Fisons Businesses as shown on the closing balance sheet dated
as of March 29, 1996 (the "Closing Balance Sheet") and the target
net tangible asset value provided for in the Restated Agreement.
In the event of such adjustment, the Purchase Price shall be
recalculated in accordance with the third sentence of this
paragraph to account for (A) any adjustment in the net tangible
assets (other than cash) of the Company as shown on the Closing
Balance Sheet from $7,095,000, and (B) any adjustment in
total goodwill associated with THI's acquisition of the Fisons
Businesses. In addition, the purchase price shall be subject to
recalculation in accordance with the third sentence of this
paragraph in the event that the Restructuring Costs incurred are
less than $1,686,000. If any recalculation made pursuant to this
paragraph results in an increase in the Purchase Price, the Buyer
shall pay the amount of such increase to the Seller, and if any
such recalculation results in a decrease in the Purchase Price,
the Seller shall pay the amount of such decrease to the Buyer.
Any payment made pursuant to the preceding sentence shall be made
within ten days after the Closing Balance Sheet has become final
(in the case of an adjustment related to the Closing Balance
Sheet) and no later than March 29, 1997 (in the case of an
adjustment related to the Restructuring Costs) and shall also be
accompanied by interest from the date hereof calculated as
provided in Section 4.1 of the Restated Agreement which is known
to the parties.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller makes the following representations and warranties and
acknowledges that the Buyer is relying upon such representations
and warranties in connection with the purchase by it of the
Shares.
3.1 Due Incorporation. The Seller and the Company are
corporations duly constituted, validly existing and in good
standing under the laws of their respective jurisdictions of
organization.
3.2 Approval of Transactions . The Seller has obtained all
necessary corporate authorizations and approvals, and has taken
all actions required for the execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby.
3.3 No conflict. Neither the execution nor delivery of this
Agreement, nor the consummation of the transactions herein
contemplated, nor the fulfilment of or compliance with the terms
and provisions hereof will (1) conflict with the Certificate of
Incorporation or By-laws of the Seller or the Company, (2)
violate any current provisions of law, administrative regulation,
or court decree applicable to the Seller or the Company or (3)
conflict with or result in a breach of any of the terms,
conditions or provisions of or constitute default under any
material agreement or instrument to which the Seller or the
Company is a party or by which either of them is bound.
3.4 Authorized Capital . The Company has an authorized and
issued capital stock of Lit. 7,333,420,000 and all the Shares
have been duly and validly issued and are fully paid.
3.5 Title to Shares. The Shares are owned by the Seller with a
good and valid title thereto and are free and clear of any liens,
options, charges and encumbrances of any kind.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer makes the following representations and warranties and
acknowledges that the Seller is relying upon such representations
and warranties in connection with the sale by it of the Shares.
4.1 Due Incorporation. The Buyer is a corporation duly
incorporated, validly existing and in good standing under the
laws of Delaware, U.S.A.
4.2 Approval of Transactions . The Buyer has obtained all
necessary corporate authorizations and approvals, and has taken
all actions required for the execution and delivery of this
Agreement and the consummation of the transactions contemplated
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hereby.
4.3 No Conflict . Neither the execution nor delivery of this
Agreement, nor the consummation of the transactions herein
contemplated, nor the fulfillment of or compliance with the terms
and provisions hereof will (1) conflict with the Certificate of
Incorporation or By-laws of the Buyer, (2) violate any current
provisions of law, administrative regulation, or court decree
applicable to the Buyer or (3) conflict with or result in a
breach of any of the terms, conditions or provisions of or
constitute default under any material agreement or instrument to
which the Buyer is a party or by which it is bound.
ARTICLE 5
INDEMNIFICATION
5.1 Indemnification by the Seller . The Seller agrees to
indemnify and hold harmless the Buyer from any and all damages,
losses liabilities, costs and expenses (including, without
limitation, settlement costs and any reasonable legal, accounting
or other expenses for investigating or defending any actions or
threatened actions) incurred by the Buyer as a result of (i) the
inaccuracy of any representation or warranty contained in Section
3 hereof; (ii) the breach by the Seller of any provision hereof;
or (iii) any third party claim arising due to the act of
omissions of the Seller or the Company from March 29, 1996 and
prior to the date hereof.
5.2 Indemnification by the Buyer. The Buyer agrees to indemnify
and hold harmless the Seller from any and all damages, losses,
liabilities, costs and expenses (including, without limitation,
settlement costs and any reasonable legal, accounting or other
expenses for investigating or defending any actions or threatened
actions) incurred by the Seller as a result of (i) the inaccuracy
of any representation or warranty contained in Section 4 hereof,
or (ii) the breach of the Buyer of any provision hereof.
5.3 Notice of Claim. Whenever any claim shall arise
indemnification hereunder, the party seeking indemnification (the
"Indemnified Party") shall promptly notify the other party (the
"Indemnifying Party") of the claim and, when known the facts
constituting the basis for such claim. In the event of any such
claim for indemnification hereunder resulting from or in
connection with any claim or legal proceedings by a third party,
the notice to the Indemnifying Party shall specify, if known, the
amount or an estimate of the amount of the liability arising
therefrom. The Indemnified Party shall not settle or compromise
any claim by a third party for which the Indemnified Party is
entitled to indemnification hereunder without the prior consent
of the Indemnifying Party, unless suit shall have been instituted
against the Indemnified Party and Indemnifying Party shall not
have taken control of such suit after notification thereof as
provided in Section 6.4 of this Agreement.
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5.4 Defense of the claim . In connection with any claim giving
rise to indemnity hereunder resulting from or arising out of any
claim or legal proceeding by a person who is not a party to this
Agreement, the Indemnifying Party at its sole cost and expense
may, upon notice to the Indemnified Party, assume the defense of
any such claim or legal proceeding to the extent permitted by
applicable law, if it acknowledges to the Indemnified Party its
obligations to indemnify the Indemnified Party with respect to
all elements of such claim. The Indemnified Party shall be
entitled to participate in (but not control) the defense of any
such action, with its counsel and at its own expense. If the
Indemnifying Party does not assume the defense of any such claim
or litigation resulting therefrom within 30 days after the date
the Indemnifying Party is notified of such claim pursuant to
paragragh 5.3 hereof, (i) the Indemnified Party may defend
against such claim or litigation, after giving notice of the same
to the Indemnifying Party, on such terms as are appropriate in
the Indemnified Party's reasonable judgemen , and (ii) the
Indemnifying Party shall be entitled to participate in (but not
control) the defense of such action, with its counsel and at its
own expense.
ARTICLE 6
MISCELLANEOUS
6.1 Amendment-Modification-Waiver. No amendment, modification,
or waiver of this Agreement will be binding or effective for any
purpose unless it is made in writing signed by the party against
whom enforcement of such amendment, modification, or waiver is
sought.
6.2 Counterparts. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same
agreement, and will become effective when one or more
counterparts have been signed by each party and delivered to the
other party.
6.3 Governing Law, Jurisdiction. This Agreement
governed by and construed in accordance with the laws of Italy
without reference to the choice of law principles thereof. The
Court of Milan shall have exclusive jurisdiction over any dispute
which may arise from this Agreement.
6.4 Notices. Every notice or other communication
contemplated, or permitted by this Agreement by any party shall
be in writing and shall be delivered either by personal delivery,
telegram, facsimile, private courier service, or by certified or
registered mail, postage prepaid, return receipt requested,
addressed to the party to whom intended at the following address:
(a) If to the Seller, to:
SID INSTRUMENTS INC.
81 Wyman Street
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Waltham, MA
01921 U.S.A.
Attention: General Counsel
Telephone: 001 617 622 1000
Fax: 001 622 1283
(b) If to Buyer, to:
THERMOQUEST CORPORATION
81 Wyman Street
Waltham, MA
01921 U.S.A.
Attention: General Counsel
Telephone: 001 617 622 1000
Fax: 001 622 1283
or at such other address as the intended recipient shall from
time to time designate by written notice delivered in accordance
herewith. Notice by courier or certified or registered mail
shall be effective on the date it is sent. All notices and
communications required, contemplated, or permitted by this
Agreement to be delivered in person shall be deemed to have been
delivered to and received by the addressee, and shall be
effective, on the date of personal delivery. Any notice
transmitted by telegram or facsimile shall be deemed to have been
delivered to and received by the addressee, and shall be
effective, on the date said notice is delivered to the telegram
company or facsimile operator for transmission.
6.5 Assignment . No party hereto may assign its rights
delegate its obligations under this Agreement without the written
consent of the other party thereto.
6.6 Burden and Benefit. This Agreement will be binding upon,
and inure to the benefit of, the parties hereto and their
respective successors and permitted assigns.
6.7 Interpretation. Article and Section headings contained in
this Agreement are inserted for convenience of reference only and
are not a part of, and will not affect the meaning or
interpretation of, this Agreement. The references herein to
Articles and Sections, unless otherwise indicated, refer to
Articles and Sections of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been signed by or on
behalf of each of the parties as of the day first above written.
SELLER BUYER
SID INSTRUMENTS, INC. THERMOQUEST CORPORATION
By: Earl R. Lewis By: Richard W.K. Chapman
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Name: Earl R. Lewis Name: Richard W.K. Chapman
Title: President Title: President