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EXHIBIT 10.21
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is by and among THERMO BIOANALYSIS CORPORATION (the
"Company"), a Delaware corporation with an office at 000 Xxxxxxx Xxxx, Xxxxx Xx,
Xxx Xxxxxx 00000; THERMO ELECTRON CORPORATION ("Thermo Electron"), a Delaware
corporation and the indirect corporate parent of the Company with an office at
00 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000; and the purchaser whose name and
address is set forth on the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement, the
parties agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF THE SHARES. The Company has authorized
the sale of up to 1,400,000 shares of its Common Stock, $.01 par value (the
"Shares"). The number of Shares may be increased or decreased by agreement
between the Company and the Placement Agents (as defined below).
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SHARES. At the Closing (as
defined in Section 3(a)), the Company will sell to the Purchaser, and the
Purchaser will buy from the Company, upon the terms and conditions hereinafter
set forth, up to the maximum number of Shares set forth on the signature page
hereof at a purchase price of $10.00 per Share. The actual number of Shares to
be purchased by the Purchaser, subject to the foregoing maximum, will be
determined by the Company and the Placement Agents, and will be set forth on the
Company's signature page to this Agreement. The Placement Agents will notify the
Purchaser prior to the Closing of the number of Shares to be so purchased by the
Purchaser. Any excess funds advanced by the Purchaser will be promptly refunded
by the Placement Agents after the Closing.
The Company represents and warrants that, at the Closing or subsequent
closings, the Company is proposing to enter into substantially this same form of
purchase agreement with certain other investors (the "Other Purchasers") and
expects to complete sales of Shares to them. The Purchaser and the Other
Purchasers are hereinafter sometimes collectively referred to as the
"Purchasers," and this Agreement and the agreements executed by the Other
Purchasers are hereinafter sometimes collectively referred to as the
"Agreements." The term "Placement Agents" shall mean NatWest Securities Limited
and National Westminster Bank PLC -- Capital Markets Branch and, unless the
context requires otherwise, their affiliates.
SECTION 3. DELIVERY OF THE SHARES AT THE CLOSING. The completion of the
purchase and sale of the Shares (the "Closing") shall occur at a place and time
(the "Closing Date") specified by the Company and the Placement Agents and of
which the Purchasers will be notified in advance by the Placement Agents. At the
Closing, the Company shall deliver to the Purchaser one or more stock
certificates registered in the name of the Purchaser, or, if so indicated on the
signature page hereof, in the name of a nominee designated by the Purchaser,
representing the number of Shares
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to be purchased by it. The Company's obligation to deliver such certificate to
the Purchaser at the Closing shall be subject to the following conditions, any
one or more of which may be waived by the Company: (a) receipt by the Company of
a certified or official bank check or checks or wire transfer of funds in the
full amount of the purchase price for the Shares being purchased hereunder; (b)
completion of the purchases and sales under the Agreements with Other
Purchasers; and (c) the accuracy of the representations and warranties made by
the Purchasers and the fulfillment of those undertakings of the Purchasers to be
fulfilled prior to the Closing. The Purchaser's obligation to accept delivery of
such certificate and to pay for the Shares evidenced thereby shall be subject to
the accuracy of the representations and warranties made by the Company and
Thermo Electron herein as of the Closing and the fulfillment of those
undertakings of the Company and Thermo Electron to be fulfilled prior to Closing
as set forth herein or in the placement agreement between the Company and the
Placement Agents.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY AND
THERMO ELECTRON. The Company and Thermo Electron hereby jointly and severally
represent and warrant to, and covenant with, the Purchaser as follows:
4.1. ORGANIZATION; COMPLIANCE WITH LAW. Each of the Company and Thermo
Electron is duly organized and validly existing in good standing under the laws
of the jurisdiction of its organization. The Company has full corporate power
and authority to own, operate and occupy its properties and to conduct its
business as presently conducted and as described in the private placement
memorandum, dated February 27, 1995, distributed in connection with the sale of
the Shares (the "Placement Memorandum") and is registered or qualified to do
business and in good standing in each jurisdiction in which it owns or leases
property or transacts business and where the failure to be so qualified would
have a material adverse effect upon the business, financial condition,
properties or operations of the Company. The Company is in compliance with all
laws, ordinances, regulations and decrees applicable to its properties (whether
owned or leased) and its business as described in the Placement Memorandum, and
all licenses, franchises, governmental approvals, permits and other
authorizations currently applicable to it or its business or properties are in
full force and effect and the Company is in full compliance therewith, except
where noncompliance with such laws, ordinances, regulations, decrees, licenses,
franchises, governmental approvals, permits and authorizations would not,
separately or in the aggregate, have a material adverse effect on the value or
use of such properties or the results of operations of such business. The
Company has no subsidiaries other than Thermo BioAnalysis Limited, a company
duly organized and validly existing under English law.
4.2. DUE AUTHORIZATION. Each of the Company and Thermo Electron has
all requisite corporate power and authority to execute, deliver and perform its
obligations under the Agreements, and the Agreements have been duly authorized
and validly executed and delivered by the Company and Thermo Electron and
constitute legal, valid and binding agreements of the Company and Thermo
Electron, enforceable against the Company and Thermo Electron in accordance
with their terms, except as rights to indemnity and contribution may be limited
by state or federal securities laws or the public policy underlying such laws,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally, except as enforceability may be
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subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
otherwise described in the Placement Memorandum.
4.3. NON-CONTRAVENTION. The execution and delivery of the Agreements,
the issuance and sale of the Shares pursuant thereto, the fulfillment of the
terms of the Agreements and the consummation of the transactions contemplated
thereby will not conflict with or constitute a violation of, or default (with
the passage of time or otherwise) under, any material agreement or instrument
to which the Company or Thermo Electron is a party or by which it is bound or
the charter, by-laws or other organizational documents of the Company or Thermo
Electron, nor result in the creation or imposition of any lien, encumbrance,
claim, security interest or restriction whatsoever upon any of the material
property or assets of the Company or Thermo Electron, or an acceleration of
indebtedness pursuant to any obligation, agreement or condition contained in
any material bond, debenture, note or any other evidence of indebtedness or any
material indenture, mortgage, deed of trust or any other material agreement or
instrument to which the Company or Thermo Electron is a party or by which any
of them is bound or to which any of the property or assets of the Company or
Thermo Electron is subject, nor conflict with, or result in a violation of, any
law, administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company or Thermo
Electron. No consent, approval, authorization or other order of any regulatory
body, administrative agency, or other governmental body in the United States is
required for the valid issuance and sale of the Shares to be sold pursuant to
the Agreements.
4.4. CAPITALIZATION. The capitalization of the Company on a pro forma
basis as of December 31, 1994 is as set forth in the Placement Memorandum. The
Company has not issued any capital stock since that date except as contemplated
by the Placement Memorandum. The Shares to be sold pursuant to the Agreements
have been duly authorized, and when issued and paid for in accordance with the
terms of the Agreements will be validly issued, fully paid and nonassessable.
The Shares will conform to the description thereof in the Placement Memorandum.
The outstanding shares of capital stock of the Company have been duly and
validly issued to Thermo Instrument Systems Inc. (a subsidiary of Thermo
Electron), or a subsidiary thereof, are fully paid and nonassessable and
conform to the description thereof in the Placement Memorandum. Except as set
forth in or contemplated by the Placement Memorandum, there are no outstanding
rights (including, without limitation, preemptive rights), warrants or options
to acquire, or instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in the Company or any contract,
commitment, agreement, understanding or arrangement of any kind relating to the
issuance of any capital stock of the Company, any such convertible or
exchangeable securities or any such rights, warrants or options.
4.5. LEGAL PROCEEDINGS. There is no material legal or governmental
proceeding pending or, to the knowledge of the Company, threatened or
contemplated to which the Company is or may be a party or of which the business
or property of the Company is or may be subject which is not disclosed in the
Placement Memorandum.
4.6. NO VIOLATION OF AGREEMENTS. The Company is not in violation of
its charter, bylaws, or other organizational document, in violation of any law,
administrative
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regulation, ordinance or order of any court or governmental agency, arbitration
panel or authority applicable to the Company, which violation, individually or
in the aggregate, would have a material adverse effect on the business or
financial condition of the Company and its subsidiaries taken as a whole and is
not in default in any material respect in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness, in any indenture, mortgage, deed of trust or any other
agreement or instrument to which the Company is a party or by which the Company
is bound or by which the properties of the Company are bound, and there exists
no condition which, with the passage of time or otherwise, would constitute a
material default under any such document or instrument or result in the
imposition of any penalty or the acceleration of any material indebtedness.
4.7. GOVERNMENTAL PERMITS, ETC. The Company has all necessary
franchises, licenses, certificates and other authorizations from any foreign,
federal, state or local government or governmental agency, department, or body
that are currently necessary for the operation of the business of the Company as
currently conducted and as described in the Placement Memorandum, the absence of
which would have a material adverse effect on the Company.
4.8. FINANCIAL STATEMENTS. The financial statements of the Company
included in the Placement Memorandum present fairly the financial condition of
the Company as of the dates and for the periods indicated. Such financial
statements are fairly presented in accordance with generally accepted accounting
principles (except for the absence of footnote disclosure).
4.9. NO MATERIAL ADVERSE CHANGE. Subsequent to the respective dates as
of which information is given in the Placement Memorandum, and except as
contemplated in the Placement Memorandum, the Company has not incurred any
material liabilities or obligations, direct or contingent, other than in the
ordinary course of business, and there has not been any material adverse change
in the Company's condition (in each case, financial or other), results of
operations, business, prospects, key personnel or capitalization.
4.10. PLACEMENT MEMORANDUM. The information contained or incorporated
by reference in the Placement Memorandum is true and correct in all material
respects as of the date thereof; and the Placement Memorandum does not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
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(a) The Purchaser represents and warrants to, and covenants with,
the Company that: (i) the Purchaser is an "accredited investor" as defined in
the regulations under the United States Securities Act of 1933, as amended (the
"Securities Act"); (ii) the Purchaser is acquiring the Shares being purchased
by it for investment and with no present intention of distributing such Shares;
(iii) the Purchaser will not, directly or indirectly, voluntarily offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the Shares except in
compliance with the Securities Act and the rules and regulations promulgated
thereunder; (iv) the Purchaser has had an opportunity to
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ask questions and receive answers from the management of the Company regarding
the Company, its business and the offering of the Shares; (v) the Purchaser has,
in connection with its decision to purchase Shares relied solely upon the
Placement Memorandum and the representations and warranties of the Company and
Thermo Electron contained herein; and (vi) the purchase price of the Shares
being purchased by the Purchaser does not represent more than 25% of the net
worth of the Purchaser (exclusive of homes and furnishings).
(b) The Purchaser acknowledges, represents and agrees that:
(i) no action has been or will be taken in any jurisdiction outside
the United States by the Company or the Placement Agents that would permit
an offering of the Shares, or possession or distribution of offering
material in connection with the issue of the Shares, in any country or
jurisdiction outside the United States where action for that purpose is
required. Each Purchaser outside the United States will comply with all
applicable laws and regulations in each foreign jurisdiction in which it
purchases, offers, sells or delivers Shares or has in its possession or
distributes any offering material, in all cases at its own expense. The
Placement Agents are not authorized to make any representation or use any
information in connection with the issue, placement, purchase and sale of
the Shares other than as contained in the Placement Memorandum;
(ii) certificates evidencing the Shares will be delivered to it upon
the purchase thereof with a legend substantially to the following effect:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE WERE ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT
OR AN OPINION (WHICH SHALL BE IN FORM AND SUBSTANCE SATISFACTORY
TO THE COMPANY) OF COUNSEL SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED.
The Purchaser agrees that any sale, transfer, pledge, hypothecation or other
disposition made by it shall be made in compliance with such legend;
(iii) it understands that it must bear the economic risk of its
investment for an indefinite period of time because the Shares have not
been registered under the Securities Act and, therefore, cannot be sold
unless subsequently registered under the Securities Act or an exemption
from such registration is available; and
(iv) it understands that there is no public market for the Shares.
(c) The Purchaser further represents and warrants to, and
covenants with, the Company that (i) the Purchaser has full right, power,
authority and capacity to enter into
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this Agreement and to consummate the transactions contemplated hereby and has
taken all necessary action to authorize the execution, delivery and performance
of this Agreement, and (ii) upon the execution and delivery of this Agreement,
this Agreement shall constitute a valid and binding obligation of the Purchaser
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification agreements of the Purchaser
herein may be legally unenforceable.
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement or by the
Placement Agents, all covenants, agreements, representations and warranties made
by the Company and the Purchaser herein and in the certificates for the
securities delivered pursuant hereto shall survive the execution of this
Agreement, the delivery to the Purchaser of the securities being purchased and
the payment therefor.
SECTION 7. Registration of the Shares; Compliance with the Securities Act.
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7.1. Registration Requirements.
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(a) On the first occasion that the Company registers any of its
securities under the Securities Act for sale to the public, whether for its own
account or for the account of other security holders or both (except with
respect to registration statements on Forms X-0, X-0 another form not available
for registering the Shares for sale to the public), it will give written notice
to the Purchasers of its intention to do so. Upon the written request of any
Purchaser received by the Company within 10 days after the giving of any such
notice by the Company, to register any of such Purchaser's Shares (which request
shall state the intended method of disposition thereof), the Company will cause
the Shares as to which registration shall have been so requested to be included
in the securities to be covered by the registration statement (the "IPO
Registration Statement") proposed to be filed by the Company, all to the extent
requisite to permit the sale or other disposition by such Purchaser (in
accordance with its written request) of the Shares so registered. In the event
that the IPO Registration Statement shall be for an underwritten public offering
of Common Stock, the number of Shares to be included in such an underwriting may
be reduced (pro rata among the Purchasers and other persons or entities (other
than the Company) requesting registration based upon the number of Shares
requested to be included) if and to the extent that the managing underwriter
shall be of the opinion that such inclusion would adversely affect the marketing
of the securities to be sold by the Company therein. In any such underwritten
public offering, the selling Purchasers shall become parties to the underwriting
agreement in the form agreed to by the Company and the underwriters. If the
managing underwriter shall be of the opinion that inclusion of any securities in
such registration for sale by selling shareholders would adversely affect the
marketing of the securities to be sold by the Company therein, and no such
secondary securities are to be included therein, the notice provisions of the
first sentence of this paragraph (a) shall be inapplicable.
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(b) Within 120 days after the closing under the IPO Registration
Statement (or, if earlier, within 10 days after the effective date of the
registration of the Common Stock under Section 12(g) of the Securities Exchange
Act of 1934 if such registration is undertaken otherwise than in connection
with the Company's initial underwritten public offering of its Common Stock),
the Company will file a registration statement (the "Resale Registration
Statement", the IPO Registration Statement and/or the Resale Registration
Statement being referred to herein as the "Registration Statement") under the
Securities Act with respect to the resale of all Shares held by the Purchasers
and not sold pursuant to the IPO Registration Statement, and the Company will
use its best efforts to cause the Resale Registration Statement to become
effective as soon as practicable. Each Purchaser undertakes in connection
therewith to provide in a timely manner all such information and materials and
take all such action as may be required in order to permit the Company to
comply with all applicable legal requirements and to obtain the acceleration of
the effective date of the Resale Registration Statement. Each Purchaser also
agrees that such Purchaser will not publicly re-sell any Shares held by such
Purchaser and not sold pursuant to the IPO Registration Statement for a period
of 120 days after the closing under the IPO Registration Statement provided
that all of the Company's executive officers and directors similarly agree (or
are otherwise effectively precluded during such period from making public
resales of shares of Common Stock owned by them).
The Company will prepare and file with the Securities and Exchange
Commission (the "Commission") such amendments and supplements to the Resale
Registration Statement and the prospectus used in connection therewith as may be
necessary to keep the Resale Registration Statement effective until the earliest
to occur of (i) all of the securities registered thereunder have been sold
pursuant thereto, (ii) the third anniversary of the date of the Closing, or
(iii) until, by reason of Rule 144(k) under the Securities Act or any other rule
of similar effect, the Shares are no longer required to be registered for the
sale thereof by the Purchasers without restriction. The Purchaser acknowledges
that there may occasionally be times when the Company must suspend the use of
the prospectus forming a part of the Resale Registration Statement until such
time as an amendment to the Resale Registration Statement has been filed by the
Company and declared effective by the Commission, or until such time as the
Company has filed an appropriate report with the Commission pursuant to the
Securities Exchange Act of 1934, as amended. The Purchaser hereby covenants that
it will not sell any Shares pursuant to said prospectus during the period
commencing at the time at which the Company gives the Purchaser notice of the
suspension of the use of said prospectus and ending at the time the Company
gives the Purchaser notice that the Purchaser may thereafter effect sales
pursuant to said prospectus.
7.2. Registration Procedures.
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(a) The Company will furnish to the Purchaser with respect to the
securities registered under the Registration Statement (and to each underwriter,
if any, of such securities) such number of copies of prospectuses and
preliminary prospectuses in conformity with the requirements of the Securities
Act and such other documents as the Purchaser may reasonably request, in order
to facilitate the public sale or other disposition of all or any of such
securities by the Purchaser; provided, however, that the obligation of the
Company to deliver copies of prospectuses or preliminary prospectuses to the
Purchaser shall be subject to the receipt
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by the Company of reasonable assurances from the Purchaser that the Purchaser
will comply with the applicable provisions of the Securities Act and of such
other securities or blue sky laws as may be applicable in connection with any
use of such prospectuses or preliminary prospectuses;
(b) The Company will file documents required of the Company for
blue sky clearance in states specified in writing by the Purchaser; provided,
however, that the Company shall not be required to qualify to do business or
consent to service of process in any jurisdiction in which it is not now so
qualified or has not so consented; and
(c) The Company will bear all expenses in connection with each
Registration Statement and with the procedures in paragraphs (a) and (b) of this
Section 7.2 and the registration of the Shares pursuant to the Registration
Statement, other than fees and expenses, if any, of underwriters and of counsel
or other advisers to the Purchaser or the Other Purchasers.
7.3. Indemnification. For the purpose of this Section 7.3:
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(a) the term "Selling Shareholder" shall mean any Purchaser
selling securities pursuant to a Registration Statement, and any affiliate of
such Purchaser;
(b) the term "Registration Statement" shall include any
preliminary prospectus, final prospectus, exhibit, supplement or amendment
included in or relating to either Registration Statement referred to in Section
7.1; and
(c) the term "untrue statement" shall mean any untrue statement
or alleged untrue statement of a material fact in the Registration Statement, or
any omission or alleged omission to state in the Registration Statement a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
The Company and Thermo Electron agree to indemnify and hold harmless
each Selling Shareholder from and against any losses, claims, damages or
liabilities to which such Selling Shareholder may become subject (under the
Securities Act or otherwise) insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, any untrue statement contained in the Registration Statement, and
the Company and Thermo Electron will reimburse such Selling Shareholder for any
legal or other expenses reasonably incurred in investigating, defending or
preparing to defend any such action, proceeding or claim; provided, however,
that the Company and Thermo Electron shall not be liable in any such case to
the extent that such loss, claim, damage or liability arises out of, or is
based upon, an untrue statement made in such Registration Statement in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Selling Shareholder specifically for use in preparation of
the Registration Statement, or the failure of such Selling Shareholder to
comply with the covenants and agreements contained herein respecting sale of
its securities.
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The Purchaser agrees to indemnify and hold harmless the Company and
Thermo Electron (and each other person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act, each officer of the Company
who signs the Registration Statement and each director of the Company) from and
against any losses, claims, damages or liabilities to which the Company or
Thermo Electron (or any such officer, director or controlling person) may
become subject (under the Securities Act or otherwise), insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of, or are based upon, any failure of the Purchaser to comply with
the covenants and agreements contained herein, or any untrue statement
contained in the Registration Statement if such untrue statement was made in
reliance upon and in conformity with written information furnished by or on
behalf of the Purchaser specifically for use in preparation of the Registration
Statement, and the Purchaser will reimburse the Company and Thermo Electron (or
such officer, director or controlling person), as the case may be, for any
legal or other expenses reasonably incurred in investigating, defending or
preparing to defend any such action, proceeding or claim.
Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 7.3, such
indemnified person shall notify the indemnifying person in writing of such claim
or of the commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought against an
indemnified person and such indemnifying person shall have been notified
thereof, such indemnifying person shall be entitled to participate therein, and,
to the extent it shall wish, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After notice from the
indemnifying person to such indemnified person of its election to assume the
defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof, provided, however,
that if there exists or shall exist a conflict of interest that would make it
inappropriate, in the opinion of counsel to the indemnified person, for the same
counsel to represent both the indemnified person and such indemnifying person or
any affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; provided,
however, that no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel for all indemnified parties.
The obligations of the Company and Thermo Electron under this Section
7.3 shall be joint and several.
7.4. TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions
precedent imposed by this Agreement upon the transferability of the Shares as
relates to securities laws matters shall cease and terminate as to any
particular number of the Shares when such securities shall have been effectively
registered under the Securities Act and sold or otherwise disposed of in
accordance with the intended method of disposition set forth in the Registration
Statement covering such securities or at such time as an opinion of counsel
satisfactory to the Company shall have been rendered to the effect that such
conditions are not necessary in order to comply with the Securities Act.
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7.5. INFORMATION AVAILABLE. Until the first Registration Statement is
effective, the Company will furnish to the Purchaser:
(a) as soon as practicable after available one copy of its year
end and quarterly consolidated financial statements prepared in accordance with
generally accepted accounting principles, such year end statements to be
audited; and
(b) upon the reasonable request of the Purchaser, any other
information concerning the Company.
SECTION 8. BROKER'S FEE. The Purchaser acknowledges that the Company
intends to pay to the Placement Agents a fee in respect of this transaction, as
well as reimbursement of their expenses. The parties hereto hereby represent
that there are no other brokers or finders entitled to compensation in
connection with the transactions contemplated hereby except for arrangements by
the Placement Agents to share a portion of their fee with certain other brokers
as selling group members.
SECTION 9. INDEMNIFICATION. The Company and Thermo Electron jointly and
severally agree to indemnify and hold harmless the Purchaser from and against
any losses, claims, damages or liabilities, together with all reasonable costs
and expenses related thereto (including, without limitation, reasonable legal
fees and expenses), which would not have been incurred if (a) all of the
representations and warranties of the Company and Thermo Electron herein had
been true and correct when made or (b) all of the covenants and agreements of
the Company and Thermo Electron herein had been duly complied with and
performed.
SECTION 10. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be sent by first-class
registered or certified mail, or by an established courier service, and shall be
deemed given when so sent:
(a) if to the Company, to:
President
000 Xxxxxxx Xxxx
Xxxxx Xx, Xxx Xxxxxx 00000
with a copy to:
General Counsel
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
or to such other person at such other place as the Company shall designate to
the Purchaser in writing; and
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(b) if to Thermo Electron, to:
General Counsel
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
or to such other person at such other place as Thermo Electron shall designate
to the Purchaser in writing; and
(c) if to the Purchaser, at its address as set forth at the end of
this Agreement, or at such other address or addresses as may have been furnished
to the Company in writing.
SECTION 11. CHANGES. Any term of the Agreements may be amended or
compliance therewith waived with the written consent of the Company, Thermo
Electron and the holders (other than Thermo Electron and its subsidiaries) of a
majority of the Shares purchased pursuant to the Agreements (whether at the
Closing or subsequent closings).
SECTION 12. HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 13. SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
SECTION 14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the Commonwealth of
Massachusetts and United States federal law.
SECTION 15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and an
original or conformed copy delivered to the other parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be executed by their duly authorized representatives as of the
following date.
Dated: ________, 1995 THERMO BIOANALYSIS CORPORATION
Shares Allocated to By:
the Purchaser:__________ -----------------------------
Title:
THERMO ELECTRON CORPORATION
By:
-----------------------------
Title:
12
13
PURCHASER SIGNATURE PAGE
------------------------
The undersigned Purchaser hereby executes the Stock Purchase Agreement with
Thermo BioAnalysis Corporation and Thermo Electron Corporation and hereby
authorizes this signature page to be attached to a counterpart of such document
executed by a duly authorized officer of Thermo BioAnalysis Corporation and
Thermo Electron Corporation.
Maximum Number of Shares ----------------------------------
to be Purchased:________________ Name of Purchaser -- PLEASE
PRINT OR TYPE
U. S. Taxpayer ID No., if any: [SIGN HERE]:
----------------------------------
By:
-------------------------------
Title:
----------------------------
Address:
--------------------------
--------------------------
--------------------------
Please set out below your registration requirements:
Name in which Shares
are to be registered:
------------------------------
Address of registered holder (if different
from above):
------------------------------
------------------------------
Contact name and telephone
number regarding settlement
and registration:
----------------------------
Name
----------------------------
Telephone Number
13
