Appendix A-2
AMENDMENT NO. 2 TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER (the "Amendment")
hereby further amends the Agreement and Plan of Merger dated as of October 19,
1999, as amended by Amendment No. 1 to Agreement and Plan of Merger dated as of
April 12, 2000 (the "Merger Agreement"), as set forth below. This Amendment is
dated as of July 28, 2000, and is by and among Thermo Electron Corporation, a
Delaware corporation ("Thermo Electron"), TTT Acquisition Corporation, a
Delaware corporation and a wholly-owned subsidiary of Thermo Electron ("Merger
Sub"), and Thermo TerraTech Inc., a Delaware corporation ("TerraTech").
RECITALS
A. On November 9, 1999, Thermo Electron filed a Registration Statement on
Form S-4 with the Securities and Exchange Commission (as amended, the
"Registration Statement") in order to register the shares of its common stock,
$1.00 par value per share, to be issued to the public stockholders of TerraTech
in the proposed merger with Merger Sub (the "Merger"), as contemplated by
Section 5.1 of the Merger Agreement.
B. In response to comments from the Securities and Exchange Commission,
Thermo Electron and TerraTech have filed amendments to the Registration
Statement on November 30, 1999, April 28, 2000 and July 26, 2000.
C. As of the date of this Amendment, Thermo Electron and TerraTech are
working with the Securities and Exchange Commission to resolve the remaining
comments on the Registration Statement, but Thermo Electron and TerraTech expect
that such comments will not be resolved in time to allow the consummation of the
Merger to take place by July 31, 2000.
D. Thermo Electron, TerraTech and Merger Sub each desire, in light of the
foregoing, to amend the Merger Agreement as set forth below.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
Section 7.1(b) of the Merger Agreement is hereby amended and restated in
its entirety to read as follows:
" (b) by either TerraTech (at the direction of the Special Committee) or
Merger Sub if the Merger shall not have been consummated by September 30, 2000;
provided, however, that the right to terminate this Agreement under this Section
7.1(b) shall not be available to any party whose action or failure to act has
been a principal cause of or resulted in the failure of the Merger to occur on
or before such date if such action or failure to act constitutes a breach of
this Agreement."
IN WITNESS WHEREOF, Thermo Electron, Merger Sub and TerraTech have caused
this Amendment to be signed by themselves or their duly authorized respective
officers, all as of the date first written above.
THERMO ELECTRON CORPORATION
By: /s/ Xxxx Xxxxx-Xxxxxxx
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Name: Xxxx Xxxxx-Xxxxxxx
Title: Vice President and Chief Financial Officer
TTT ACQUISITION CORPORATION
By: /s/ Xxxx Xxxxx-Xxxxxxx
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Name: Xxxx Xxxxx-Xxxxxxx
Title: President
THERMO TERRATECH INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President and Chief Executive Officer
