STOCK PURCHASE AGREEMENT
This AGREEMENT is dated as of November 4, 1996 by and among
Thermo Instrument Systems Inc., a Delaware corporation
("Seller"), and Thermo Optek Corporation, a Delaware corporation
("Buyer").
WHEREAS, Seller desires to sell, or to cause its
subsidiaries to sell, all of the shares of capital stock of ARL
Applied Research Laboratories S.A. ("ARL") owned by the Seller
(the "Shares") and the Buyer wishes to buy the Shares;
NOW, THEREFORE, in consideration of the premises and mutual
promises and agreements set forth herein, the parties hereto
hereby agree as follows:
1. Purchase and Sale of Shares. The Seller hereby sells,
assigns, transfers, conveys, and delivers all of the Seller's
right, title and interest in and to the Shares to the Buyer. In
consideration for the Shares, the Buyer shall pay to the Seller
the sum of $34,004,000 in cash (the "Purchase Price"). The
Buyer and Seller acknowledge and agree that such Purchase Price
represents the sum of (i) the net tangible assets of ARL (assumed
to be $12,486,000) as of the date of the Seller's acquisition of
the Shares as part of the acquisition on March 29, 1996 by the
Seller 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 Seller, Thermo Electron Corporation and Fisons plc (the
"Restated Agreement"), plus (ii) a percentage of the total
goodwill associated with the Seller's acquisition of the Fisons
Businesses equal to the sales of ARL for the 1994 and 1995 fiscal
years relative to the total sales of the Fisons Businesses for
such years (the "ARL Percentage"), plus (iii) the ARL Percentage
of the total costs incurred by the Seller 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 Seller 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 any 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 ARL as shown on the
Closing Balance Sheet from $12,486,000), and (B) any adjustment
in the total goodwill associated with Thermo'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 $2,453,000. If any recalculation made pursuant to
this paragraph results in an increase in the Purchase Price, the
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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.
2. Further Assurances. At the request of the Buyer at any
time on or after the date hereof, the Seller will execute and
deliver such further instruments of transfer and conveyance and
take such other action as the Buyer reasonably may request
effectively to assign and transfer to the Buyer the Shares.
3. The Seller's Representations and Warranties. The
Seller represents and warrants that:
(a) Organization and Standing. The Seller is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(b) 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.
(c) 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 Seller or
the organizational documents of ARL, (2) violate any current
provisions of law, administrative regulation, or court
decree applicable to the Seller or ARL, (3) require the
consent or approval of any governmental authority except for
Swiss Lex Friederich approval, or (4) 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 ARL is a
party or by which either is bound.
(d) Capitalization of ARL. The Shares constitute all
of the issued and outstanding share capital of ARL. The
Shares have been duly authorized, validly issued and are
fully paid and non-assessable. The Seller holds good and
marketable title to the Shares and will transfer the Shares
to the Buyer pursuant to this Agreement free and clear of
any liens, claims or encumbrances whatsoever. No share
capital of ARL is reserved for issuance, and there are no
options, warrants, convertible securities or other rights,
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agreements or commitments obligating ARL to issue any share
capital.
4. The Buyer's Representations and Warranties.
(a) Organization and Standing. The Buyer is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(b) 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 hereby.
(c) 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, (3) require the
consent or approval of any governmental authority or (4) 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.
5. Indemnification.
(a) 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) any liability,
commitment or obligation of ARL or any of its subsidiaries that
result from any third party claim based upon the acts or
omissions of ARL or such subsidiaries on or after March 29, 1996
and prior to the effective date hereof, (ii) the inaccuracy of
any representation or warranty contained in Section 3 hereof or
(iii) the breach by the Seller of any provision hereof.
(b) 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 by the Buyer of any provision hereof.
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(c) Whenever any claim shall arise for 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 the Indemnifying Party shall
not have taken control of such suit after notification thereof as
provided in Section 5(d) of this Agreement.
(d) 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 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 Paragraph 5(c) 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 judgment, 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.
6. Restated Agreement. The Seller hereby assigns to the
Buyer, and the Buyer hereby accepts and asssumes, the Seller's
rights and obligations under the Restated Agreement, and any
agreements or instruments excuted by the Seller in connection
therewith, but only to the extent such rights and obligations
relate primarily ARL. In furtherance of the foregoing, the Buyer
may enforce, in its own name and in the name and on behalf of the
Seller, any of the rights of the Seller under Section 11 of the
Restated Agreement, and, if requested by the Buyer, the Seller
shall take such actions, at its own expense, as the Buyer shall
reasonably request in order that the Buyer shall have the full
rights and benefits granted to it under this Section 6.
.
7. Transfer and Sales Tax. Notwithstanding any provisions
of law to the contrary, the Seller shall be responsible for and
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shall pay all sales, transfer or stamp taxes, if any, upon the
sale or transfer of the Shares hereunder.
8. Effective Date. The transfer of the Shares shall be
deemed to be effective as of the date hereof.
9. Captions. The captions and headings to the various
sections, paragraphs and exhibits of this Agreement are for
convenience of reference only and shall not affect or control the
meaning or interpretation of any of the provisions of this
Agreement.
10. Integration. This Agreement contains the entire
understanding of the parties hereto with respect to the subject
matter contained herein.
11. Notice of Communication. Any notice or other
communication shall be in writing and shall be personally
delivered, or sent by overnight or second day courier or by first
class mail, return receipt requested, to the party to whom such
notice or other communication is to be given or made at such
party's address set forth below, or to such other address as such
party shall designate by written notice to the other party as
follows:
If to the Seller:
Thermo Instrument Systems Inc.
c/o Thermo Electron Corporation
81 Wyman Street
P.O. Box 9046
Waltham, MA 02445-9046
Attn: General Counsel
If to the Buyer:
c/o Thermo Optek Corporation
81 Wyman Street
P.O. Box 9046
Waltham, MA 02445-9046
Attn: General Counsel
provided that any notice of change of address, and any notice or
other communication given otherwise than as specified above shall
be effective only upon receipt; and further that any presumption
of receipt by the addressee shall be inoperable during the period
of any interruption in Postal Service.
12. Survival of Representations and Warranties. All
representations and warranties made by the Seller or the Buyer in
this Agreement shall survive the execution and delivery of this
Agreement.
5PAGE
13. Governing Law; Assignment. This Agreement is to be
construed, interpreted, applied and governed in all respects in
accordance with the laws of the Commonwealth of Massachusetts,
without regard to its conflict of laws provisions, is to take
effect as a sealed instrument, is binding upon and inures to the
benefit of the parties hereto and their respect successors and
assigns and may be canceled, modified or amended only by a
written instrument executed by the Seller and the Buyer. No
party hereto may assign its rights hereunder without prior
written consent of the other party.
6PAGE
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date and year first above written.
THERMO OPTEK CORPORATION
By: Robert J. Rosenthal
------------------------------------
Robert J. Rosenthal
Senior Vice President
THERMO INSTRUMENT SYSTEMS INC.
By: Earl R. Lewis
------------------------------------
Earl R. Lewis
Executive Vice President and Chief
Operating Officer