EXHIBIT 2.1
SHARE PURCHASE AGREEMENT
This AGREEMENT is dated as of January 29, 1998 by and among
(i) Radley Services Ltd. ("Radley") and Peek Corporation ("PC"),
on the one hand, (ii) ONIX Systems Inc., on the other hand
("Buyer"), and (iii) Thermo Power Corporation, a Massachusetts
corporation ("Thermo"). Thermo, Radley and PC are sometimes
referred to herein collectively as the Sellers.
WHEREAS, Sellers desire to sell all of the issued and
outstanding shares of each of (i) Peek Measurement Ltd., a
company organized under the laws of England ("PML"), (ii) Xxxxxx
Instruments Inc., a company organized under the laws of the State
of Delaware ("Xxxxxx") and (iii) Peek Measurement Inc., a company
organized under the laws of the State of Texas ("PMI") to Buyer,
and Buyer desires to purchase such shares from the Sellers;
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.
(a) PC hereby sells, assigns, transfers, conveys, and
delivers to Buyer 100% of the issued and outstanding shares of
capital stock of each of Xxxxxx (the "Xxxxxx Shares") and PMI
(the "PMI Shares") and (ii) Radley hereby sells, assigns,
transfers, conveys, and delivers to Buyer 100% of the issued and
outstanding share capital of PML (the "PML Shares," collectively
with the Xxxxxx Shares and PMI Shares, the "Shares"). In
consideration for the Shares, Buyer shall pay to Sellers an
aggregate of $19,116,825 in cash (the "Purchase Price") plus
interest on such amount for the period beginning November 6, 1997
and ending on the date of payment of the Purchase Price, at a
rate equal to the 90-day Commercial Paper Composite Rate for
90-day maturities as reported by Xxxxxxx Xxxxx Capital Markets,
as an average of the last five business days of the Buyer's
latest fiscal quarter, plus 25 basis points, reset each quarter.
The parties acknowledge and agree that the Purchase Price
represents the sum of (i) the aggregate net tangible assets of
PML, Xxxxxx and PMI (collectively, the "Peek Measurement
Business") (assumed to be $5,559,000) as of the date of Thermo's
acquisition of the Peek Measurement Business as part of the
acquisition on November 6, 1997, by Thermo of Peek plc (the "Peek
plc Business"), plus (ii) a percentage of the total goodwill
associated with Thermo's acquisition of the Peek plc Business
equal to the total revenues of the Peek Measurement Business for
the 1997 fiscal year relative to the total revenues of the Peek
plc Business for such period, plus (iii) $1,038,825, representing
the estimated tax liability of Thermo relating to the transfer of
the Peek Measurement Business to Buyer.
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2. Further Assurances. At the request of Buyer at any
time on or after the date hereof, Sellers will execute and
deliver such further instruments of transfer and conveyance and
take such other action as Buyer reasonably may request
effectively to assign and transfer to Buyer any of the Shares.
3. Sellers' Representations and Warranties. Each Seller
represents and warrants that:
(a) Organization and Existence. Such Seller is a
company organized and existing under the laws of its respective
jurisdiction of organization.
(b) Approval of Transactions. Each 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
charter documents or by-laws of such Seller, (2) violate any
current provisions of law, administrative regulation, or court
decree applicable to such Seller 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 such Seller, or any Peek Measurement Business entity, is a
party or by which each is bound.
(d) Ownership of Assets and Shares; Authority to
Transfer. The Shares are not encumbered and are freely
transferable by the respective Seller. PC holds good and
marketable title to the Xxxxxx Shares and the PMI Shares and no
third party is entitled to claim any right thereto or make any
claim thereon. Radley holds good and marketable title to the PML
Shares and no third party is entitled to claim any right thereto
or make any claim thereon. The transfer of the Shares to Buyer
pursuant to this Agreement will vest in Buyer title to the
Shares, free and clear of all liens, claims, equities, options,
calls, voting trusts, agreements, commitments and encumbrances
whatsoever.
4. Buyer's Representations and Warranties.
(a) Organization and Existence. The Buyer is a
company organized and existing under the laws of its jurisdiction
of organization.
(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
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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
charter documents 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.
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5. Indemnification.
(a) Sellers jointly and severally agree to indemnify
and hold harmless 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 Buyer as a result of (i) the inaccuracy of
any representation or warranty contained in Section 3 hereof or
(ii) the breach by Sellers of any provision hereof.
(b) Buyer agrees to indemnify and hold harmless
Sellers 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
Sellers as a result of (i) the inaccuracy of any representation
or warranty contained in Section 4 hereof or (ii) the breach by
Buyer of any provision hereof.
(c) Whenever any claim shall arise for indemnification
hereunder, the party seeking indemnification (the "Indemnified
Party") shall promptly notify the other party or parties from
whom indemnification is sought (as the case may be, 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,
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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. Effective Date. The transfer of the Shares shall be
deemed to be effective as of November 6, 1997.
7. 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.
8. Integration. This Agreement contains the entire
understanding of the parties hereto with respect to the subject
matter contained herein.
9 Notices and Communications. 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 Sellers or Thermo Power Corporation:
Thermo Power Corporation
c/o Thermo Electron Corporation
00 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Attn.: General Counsel
If to Buyer:
ONIX Systems Inc.
c/o Thermo Electron Corporation
00 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
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.
10. Survival of Representations and Warranties. All
representations and warranties made by Sellers or Buyer in this
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Agreement shall survive the execution and delivery of this
Agreement.
11. 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 respective successors and
assigns and may be canceled, modified or amended only by a
written instrument executed by Thermo, Sellers and Buyer. No
party hereto may assign its rights hereunder without prior
written consent of the other party.
12. Guaranty. Thermo hereby unconditionally guarantees all
of the obligations of the other Sellers under this Agreement.
13. Counterparts. This Agreement may be executed in
counterparts, all of which together shall for all purposes
constitute one Agreement, binding on the parties hereto
notwithstanding that such parties have not signed the same
counterpart.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
SELLERS:
RADLEY SERVICES LTD. PEEK CORPORATION
By: J. Xxxxxxx Xxxxxxxx By: J. Xxxxxxx Xxxxxxxx
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Title: Authorized Signatory Title: Chariman
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BUYER: THERMO:
ONIX SYSTEMS INC. THERMO POWER CORPORATION
By: Xxxxxxx X. Xxxxxx By: J. Xxxxxxx Xxxxxxxx
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Title: President & CEO Title: President & CEO
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