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SHARE PURCHASE AGREEMENT
BETWEEN
THERMO BIOANALYSIS CORPORATION
AND
THERMOQUEST CORPORATION
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May 11, 1998
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SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "AGREEMENT") dated as of May 11, 1998 is
between Thermo BioAnalysis Corporation ("TBA"), a Delaware corporation, and
ThermoQuest Corporation ("TMQ"), a Delaware corporation.
PRELIMINARY STATEMENT
1. TMQ owns all of the issued and outstanding shares (the "SHARES") of
Shandon GmbH, a company organized under the laws of Germany. Shandon GmbH is
sometimes referred to herein as the "COMPANY."
2. TBA desires to purchase, or cause its wholly-owned subsidiaries to
purchase, and TMQ desires to sell, or to cause its subsidiaries to sell, all of
the issued and outstanding shares of the Company for the consideration set forth
below, subject to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual promises hereinafter set forth and
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
SECTION 1 - PURCHASE AND SALE OF THE SHARES
1.1 PURCHASE OF THE SHARES FROM TMQ. Subject to and upon the terms and
conditions of this Agreement, at the closing of the transactions contemplated by
this Agreement (the "CLOSING"), TMQ shall sell, transfer, convey, assign and
deliver to TBA, or its wholly-owned subsidiaries, and TBA or its wholly-owned
subsidiaries shall purchase, acquire and accept the Shares.
1.2 FURTHER ASSURANCES. At any time and from time to time both prior to and
after the Closing, at TBA's request and without further consideration, TMQ shall
promptly execute and deliver such instruments of sale, transfer, conveyance,
assignment and confirmation, and take all such other action as TBA may
reasonably request, more effectively to transfer, convey and assign to TBA, and
to confirm TBA's title to, all of the Shares owned by TMQ, to put TBA in actual
possession and operating control of the assets, properties and business of the
Company, to assist in exercising all rights with respect thereto and to carry
out the purpose and intent of this Agreement.
1.3 CONSIDERATION FOR THE SHARES. The consideration to be paid by TBA for
the Shares (the "PURCHASE PRICE") shall be 100 shares (the "PURCHASE PRICE
SHARES") of TBA's common stock, par value $.01 per share (the "TBA COMMON
STOCK").
1.4 CLOSING. The Closing shall take place at the offices of Thermo Electron
Corporation at 00 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx on or about May 27, 1998
(the "CLOSING DATE"). At the Closing, TMQ shall deliver certificates evidencing
the Shares duly endorsed in blank or with stock powers duly executed. At the
Closing, if the Purchase Price Shares have been listed on the American Stock
Exchange (the "AMEX") in accordance with Section 4.7 hereto, TBA shall deliver
one or more certificates representing the Purchase Price Shares to TMQ. If the
Purchase Price Shares have not been so listed, TBA shall deliver an instrument
obligating TBA to
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issue the Purchase Price Shares to TMQ on the date that such shares are listed
on the AMEX in accordance with Section 4.7 hereto. The number of Purchase Price
Shares shall be adjusted to prevent dilution if between the Closing Date and the
date of issuance of the Purchase Price Shares, TBA (i) issues any shares of TBA
Common Stock or any rights to purchase TBA Common Stock as a dividend or makes
any other distribution as a dividend upon TBA Common Stock; (ii) issues any
shares of TBA Common Stock in subdivision of outstanding shares of TBA Common
Stock by reclassification or otherwise; or (iii) combines outstanding shares of
TBA Common Stock, by reclassification or otherwise.
SECTION 2 - REPRESENTATIONS AND WARRANTIES OF TMQ
Except as set forth on the disclosure schedule delivered to TBA on the
date hereof (the "DISCLOSURE SCHEDULE"), TMQ represents and warrants to TBA as
follows. The term "knowledge," when used in this Agreement, shall mean actual
knowledge after reasonable investigation.
2.1 ORGANIZATION AND QUALIFICATION. Each of TMQ and the Company is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation and has full corporate power and authority
to own, lease and operate its assets and to carry on its business as now being
and as heretofore conducted. Each of TMQ and the Company is qualified or
otherwise authorized to transact business as a foreign corporation in all
jurisdictions in which such qualification or authorization is required by law,
except for jurisdictions in which the failure to be so qualified or authorized
would not have a material adverse effect on the assets, properties, business,
results of operations, condition (financial or otherwise) or prospects of the
Company taken as a whole.
2.2 AUTHORITY. TMQ has full right, power, capacity and authority to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of TMQ. This
Agreement has been duly and validly executed and delivered by TMQ and
constitutes the valid and binding obligation of TMQ, enforceable against it in
accordance with the terms hereof. Neither the execution, delivery and
performance of this Agreement, nor the consummation of the transactions
contemplated hereby will (i) conflict with or result in a violation, breach,
termination or acceleration of, or default under (or would result in a
violation, breach, termination, acceleration or default with the giving of
notice or passage of time, or both) any of the terms, conditions or provisions
of the organizational documents of TMQ or the Company, or of any note, bond,
mortgage, indenture, license, agreement or other instrument or obligation to
which TMQ or the Company is a party or by which TMQ or the Company or any of
their respective properties or assets may be bound or affected; (ii) result in
the violation of any order, writ, injunction, decree, statute, rule or
regulation applicable to TMQ or the Company or any of their respective
properties or assets; (iii) result in the imposition of any lien, encumbrance,
charge or claim upon any assets of the Company; or (iv) entitle any employee of
the Company to severance or other payments or create any other obligation to an
employee. No consent or approval by, or notification to or filing with, any
court, governmental authority or
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third party is required in connection with the execution, delivery and
performance of this Agreement by TMQ or the consummation of the transactions
contemplated hereby.
2.3 CAPITALIZATION AND TITLE TO SHARES.
(a) The authorized share capital of the Company is set forth on EXHIBIT
A hereto. TMQ is the beneficial owner of all of the issued and outstanding
shares of the Company. All of the Shares are duly authorized and are validly
issued, fully paid, nonassessable and free of preemptive rights.
(b) There are no other shares of capital stock of the Company
authorized or outstanding or any subscriptions, options, conversion or exchange
rights, warrants, repurchase or redemption agreements, or other agreements or
commitments obligating the Company to issue, transfer, sell, repurchase or
redeem any shares of its capital stock or other securities. There are no written
shareholder agreements, voting trusts, proxies or other agreements, instruments
or understandings with respect to the voting of the capital stock of the
Company. The books and records of the Company, including without limitation the
books of account, minute books, stock certificate books and stock ledgers, are
complete and correct and accurately reflect the conduct of the business and
affairs of the Company.
2.4 SUBSIDIARIES AND OTHER AFFILIATES.
(a) The Company has no Subsidiaries. As used in this Agreement,
"SUBSIDIARY" means any corporation or other legal entity of which a party to
this Agreement owns, directly or indirectly, fifty percent (50%) or more of the
stock or other equity interest entitled to vote for the election of directors.
(b) The Company does not, directly or indirectly, own any material
equity interest in any corporation, partnership, joint venture or other entity
2.5 FINANCIAL STATEMENTS. TMQ has delivered to TBA prior to the execution
of this Agreement true and complete copies of the unaudited consolidated balance
sheet of the Company as of January 3, 1998 and the unaudited consolidated
statement of operations of the Company for the period beginning March 12, 1997
and ended January 3, 1998. Collectively, the financial statements referred to in
the preceding sentence are sometimes referred to herein as the "Financial
Statements" and the unaudited consolidated balance sheet of the Company as of
January 3, 1998 is referred to herein as the "Balance Sheet." The Financial
Statements have been prepared from, and are in accordance with, the books and
records of TMQ and fairly present the financial condition and results of
operations of the Company as of the date and for the period indicated, in each
case in accordance with generally accepted accounting principles applied on a
basis consistent with previous years subject to normal year-end adjustments,
which in the aggregate are not material, and footnote disclosures.
2.6 ABSENCE OF UNDISCLOSED LIABILITIES; NO DEALINGS WITH AFFILIATES. As of
the date of the Balance Sheet, the Company had no liabilities or obligations of
any nature, whether accrued, absolute, contingent or otherwise and whether due
or to become due (including without
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limitation, liabilities as guarantor or otherwise with respect to obligations of
others or liabilities for taxes due or then accrued or to become due), required
to be reflected or disclosed on the Balance Sheet or the footnotes thereto that
were not adequately reflected or reserved against on the Balance Sheet or
disclosed in the related footnotes. The Company has no liabilities of the type
required to be reflected or disclosed on a balance sheet or the footnotes
thereto in accordance with generally accepted accounting principles, other than
liabilities (i) adequately reflected or reserved against on the Balance Sheet or
disclosed in the related footnotes, (ii) incurred since the date of the Balance
Sheet in the ordinary course of business and consistent with past practice,
(iii) that would not, in the aggregate, have a material adverse effect on the
Company taken as a whole, or (iv) disclosed in this Agreement. The Company has
no contractual arrangement with or commitment to or from any of its
stockholders, officers, management, directors or employees (or their family
members) other than such as may have been entered into in the normal course of
employment, including, without limiting the generality of the foregoing, being
directly or indirectly a joint investor or coventurer with respect to, or owner,
lessor, lessee, licenser or licensee of, any real or personal property, tangible
or intangible, owned or used by, or a lender to or debtor of, the Company.
2.7 TAXES. The Company has accurately prepared and duly and timely filed
all federal, state, local, provincial or foreign tax and other returns and
reports which were required to be filed, in respect of all income, franchise,
excise, sales, use, property (real and personal), VAT, payroll and other taxes,
levies, imports, duties, license and registration fees, charges or withholdings
of any nature whatsoever (collectively "TAXES"), and to the extent the
liabilities of the Company, as of the date of the Balance Sheet, for Taxes have
not been fully discharged, adequate reserves have been established on the
Balance Sheet. None of the federal, state, local, provincial or foreign Tax
returns of the Company has been audited or examined by the governmental
authority having jurisdiction. No waivers of any statutes of limitation are in
effect in respect of any Taxes. The Company is not in default in the payment of
any Taxes due and payable or on any assessments received in respect thereof, and
there are no claims pending or, to the best knowledge of the Company and TMQ,
threatened, against the Company for past due Taxes. All Taxes incurred but not
yet due have been fully accrued on the books of the Company or full reserves
have been established therefor; the reserves indicated on the Balance Sheet are
also adequate to cover all Taxes that may become payable by the Company in
future periods in respect of any transactions or sales occurring on or prior to
the date of the Balance Sheet. Without limiting the generality of the foregoing,
the Company has withheld or collected from each payment made to each of their
employees, consultants or non-U.S. payees, the amount of all Taxes required to
be withheld or collected therefrom, and has paid the same to the proper tax
receiving officers or authorized depositories.
2.8 PROPERTIES. The Company owns and has good title to all of the assets
and properties reflected as owned by it on the Balance Sheet or acquired by the
Company since the date of the Balance Sheet (except personal property sold or
otherwise disposed of in the ordinary course of business since the date of the
Balance Sheet), free and clear of any lien, claim or other encumbrance, except
for (i) the liens, claims or other encumbrances reflected on the Balance Sheet,
(ii) assets and properties disposed of, or subject to purchase or sales orders,
in the ordinary course of business since the date of the Balance Sheet, (iii)
liens, claims or other encumbrances securing the liens of materialmen, carriers,
landlords and like persons, all of which are not yet
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due and payable, (iv) liens for taxes not yet delinquent and (v) liens, claims,
other encumbrances or defects in title that, in the aggregate, are not material
to the Company taken as a whole. The Company owns or has a valid leasehold
interest in all of the buildings, structures, leasehold improvements, equipment
and other tangible property material to the Company taken as a whole, all of
which are in good and sufficient operating condition and repair, ordinary wear
and tear excepted and the Company has not received any notice that any such
property is in violation in any material respect of any existing law or any
building, zoning, health, safety or other ordinance, code or regulation.
2.9 HAZARDOUS MATERIALS.
(a) There has been no generation, use, handling, storage or disposal of
any Hazardous Materials in violation of common law or any applicable
environmental law at any site owned or premises leased by the Company during the
period of the Company's ownership or lease. Nor has there been or is there
threatened any release of any Hazardous Materials on or at any such site or
premises during such period in violation of common law or any applicable
environmental law or which created or will create an obligation to report or
remediate such release. For purposes of this Agreement, "HAZARDOUS MATERIAL"
means any medical waste, flammable, explosive or radioactive material, or any
hazardous or toxic waste, substance or material, including substances defined as
"hazardous substances," "hazardous materials," "solid waste" or "toxic
substances" under any applicable laws or ordinances relating to hazardous or
toxic materials and substances, air pollution (including noise and odors), water
pollution, liquid and solid waste, pesticides, drinking water, community and
employee health, environmental land use management, stormwater, sediment
control, nuisances, radiation, wetlands, endangered species, environmental
permitting, petroleum products, and all rules and regulations promulgated
pursuant to any such laws and ordinances.
(b) TMQ has previously made available to TBA copies of all documents in
its possession concerning any environmental or health and safety matter, copies
of any environmental audits or risk assessments, site assessments, documentation
regarding off-site disposal of Hazardous Materials, spill control plans and
material correspondence with any governmental authority regarding the foregoing.
2.10 ACCOUNTS RECEIVABLE. All accounts and notes receivable of the Company
shown on the Balance Sheet and all accounts and notes receivable acquired by the
Company subsequent to the date of the Balance Sheet have arisen in the ordinary
course of business and have been collected, or are in the process of collection
and are collectible in the ordinary course of business and in any event within
nine months from the Closing Date, in the aggregate recorded amounts thereof,
less the applicable allowances reflected on the Balance Sheet with respect to
the accounts and notes receivable shown thereon, or set up consistent with past
practice on the books of the Company with respect to the accounts and notes
receivable acquired subsequent to the date of the Balance Sheet.
2.11 INVENTORIES. All Inventories (as defined below) of the Company are of a
quality and quantity usable and saleable in the ordinary course of business,
except for obsolete items and items of below-standard quality, all of which are
in the aggregate immaterial to the Company
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taken as a whole. Items included in such Inventories are carried on the books of
the Company, and are valued on the Balance Sheet, at the lower of cost or
market. The value of obsolete materials and materials of below-standard quality
or quantity has been written down on the books of account of the Company to
realizable market value. The term "Inventories" includes all stock of raw
materials, work-in-process and finished goods, including but not limited to
finished goods purchased for resale, held by the Company for manufacturing,
assembly, processing, finishing, sale or resale to others, from time to time in
the ordinary course of business of the Company in the form in which such
inventories then are held or after manufacturing, assembling, finishing,
processing, incorporating with other goods or items, refining or the like.
2.12 PURCHASE AND SALE COMMITMENTS. No outstanding purchase commitments by
the Company are in excess of the normal, ordinary and usual requirements of the
Company, and the aggregate of the contract prices to which the Company has
agreed in any outstanding purchase commitments is not so excessive when compared
with current market prices for the relevant commodities or services that a
material loss is likely to result. No outstanding sales commitment by the
Company obligates the Company to sell any product or service at a price which,
because of currently prevailing and projected costs of materials or labor, is
likely to result, when all such sales commitments are taken in the aggregate, in
a material loss to the Company taken as a whole. There are no material suppliers
to the Company of significant goods or services with respect to which practical
alternative sources of supply, or comparable products, are not available on
comparable terms and conditions.
2.13 GOVERNMENTAL AUTHORIZATIONS. The Company has all governmental permits,
licenses, franchises, concessions, zoning variances and other approvals,
authorizations and orders (collectively "PERMITS") material to the Company taken
as a whole. All such Permits are presently in full force and effect, the Company
is in compliance with the requirements thereof, no suspension or cancellation of
any of them is threatened so far as is known to TMQ or the Company, and the sale
of the Shares as contemplated hereby will not adversely affect the validity or
effectiveness of, and will not require, for retention thereof after such sale,
the consent or approval of any party to, or any other person or governmental
authority having jurisdiction of, any such Permit. Neither the Company nor TMQ
has any knowledge of any fact or circumstance which would prevent, limit or
restrict it from continuing to operate its business in the present manner, and
no new requirements pertaining to the manner of operating its business have been
issued or announced by any governmental authority during the past year nor are
there any disputes pending between the Company and any governmental authority
relating to the Company's operations as presently being conducted or actively
considered.
2.14 INTELLECTUAL PROPERTY. The Company owns, or is licensed to use, or
otherwise has the right to use all patents, trademarks, service marks, trade
names, trade secrets, franchises, and copyrights, and all applications for any
of the foregoing, and all technology, know-how and processes necessary for the
conduct of its businesses as now conducted (collectively, the "PROPRIETARY
RIGHTS"). A list of all such copyrights, trademarks, tradenames and patents, and
all applications therefor, has been furnished or made available to TBA. Neither
the Company nor TMQ is aware of any claim by any third party that the business
of the Company as currently conducted or proposed to be conducted infringes upon
the unlicensed Proprietary Rights of others, nor has the Company or TMQ received
any notice or claim from any third party of such
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infringement by the Company. Neither the Company nor TMQ is aware of any
infringement by any third party on, or any competing claim of right to use or
own any of, the Proprietary Rights of the Company. The Company has the right to
use, free and clear of claims or rights of others, all customer lists and
computer software material to its business as currently conducted. To the best
knowledge of the Company and TMQ, none of the activities of the employees of the
Company on behalf of the Company violates any agreements or arrangements which
any such employees have with former employers in a way which is materially
adverse to the business of the Company taken as a whole.
2.15 INSURANCE. The Company is not in default with respect to any provisions
of any policy of general liability, fire, title or other form of insurance held
by it, the Company is current in the payment of all premiums due on such
insurance and the Company has not failed to give any notice or present any claim
thereunder in due and timely fashion, except for claims that are immaterial in
both the nature of the claim and in the amount of such claim. The Company
maintains insurance on all of its assets and business (including products
liability insurance) from insurers which are financially sound and reputable, in
amounts and coverages and against the kinds of risks and losses reasonably
prudent to be insured against by corporations engaged in the same or similar
businesses. No basis exists which would jeopardize the coverage under any such
insurance. No such insurance will be terminated or canceled by reason of the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby. TMQ has previously furnished or made available
to TBA all policies of general liability, fire, title or other forms of
insurance applicable to the Company and a description of all claims pending
thereunder other than health or dental insurance claims.
2.16 EMPLOYEE BENEFIT PLANS
(a) TMQ has made available or furnished to TBA true and complete copies
of each pension, profit-sharing, deferred compensation, incentive compensation,
severance pay, retirement, welfare benefit or other plan or arrangement
providing benefits to employees or retirees, including both those that do and do
not constitute employee benefit plans within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (the "ERISA"),
currently maintained or contributed to by TMQ or any of its affiliates for the
benefit of the employees of the Company (each, a "PLAN").
(b) Except as set forth on the Disclosure Schedule, (i) each such Plan
that is an "employee pension benefit plan" within the meaning of Section 3(2) of
ERISA is being operated and administered in compliance with Section 401(a) of
the Code, a favorable determination letter has been obtained from the Internal
Revenue Service (the "IRS") for such Plan, and there is no accumulated funding
deficiency, as defined in Section 302(a)(2) of ERISA or Section 412 of the Code,
with respect to such Plan; (ii) there has been no non-exempt "prohibited
transaction" within the meaning of Section 406 of ERISA or Section 4975 of the
Code involving the assets of any Plan nor any "reportable event" within the
meaning of Section 4043 of ERISA with respect to any Plan; (iii) all required
employer contributions to such Plan have been made (or, in the case of
contributions not yet due, have been accrued on the Balance Sheet); (iv) TMQ has
made available to TBA as to each such Plan a true and correct copy of (w) the
annual report (Form 5500) filed with the IRS for each of the three most recent
plan years, (x) each plan, trust
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agreement, group annuity contract and insurance contract, if any, relating to
such Plan, (y) each actuarial report prepared for each of the last three years
for each Plan and (z) each summary plan description distributed to participants
in each Plan and each summary of material modifications to each Plan (as defined
in ERISA); and (v) each such Plan is, and at all relevant times has been, in
compliance with ERISA, the Code and the terms of such Plan. Neither TMQ nor the
Company or their respective affiliates has ever participated in a "multiemployer
pension plan" as defined in Section 3(37) of ERISA.
(c) Each Plan applicable to employees of the Company outside of the
United States is fully funded, has been administered, in all material respects,
in compliance with its terms and the requirements of all applicable laws and
regulations and all required contributions have been made. All reports, forms
and other documents required to be filed or advisable to be filed with any
governmental entity with respect to each such Plan have been timely filed and
are complete and accurate in all material respects.
(d) Except as set forth on the Disclosure Schedule, the Company has no
obligation to provide any welfare benefits to retired or former employees other
than continuation of welfare benefits as required by applicable law.
(e) The Company has no liability under or with respect to any employee
benefit plans or arrangements that it no longer maintains or in which it no
longer participates.
2.17 AGREEMENTS AND DOCUMENTS. TMQ has previously furnished or made
available to TBA true, correct and complete copies of each document that is
referred to or otherwise related to any of the following items referred to in
this Section 2.17:
(a) each document related to interests in real property owned, leased
or otherwise used or claimed by the Company;
(b) (i) each agreement of the Company made in the ordinary course of
business which involves aggregate future payments by or to the Company of more
than one hundred fifty thousand dollars ($150,000) or any agreement made in the
ordinary course of business whose term extends beyond one year after the date
hereof; (ii) each agreement containing any covenant restricting the freedom of
the Company to compete in any line of business or with any person; and (iii)
each agreement of the Company not made in the ordinary course of business which
is or was to be performed after the date hereof;
(c) all employment or similar compensation agreements of the Company
which may not be terminated by the Company without penalty within thirty days
after the Closing;
(d) all bonus, incentive compensation, deferred compensation,
profit-sharing, stock option, retirement, pension, severance, indemnification,
insurance, death benefit or other fringe benefit plans, agreements or
arrangements of the Company (or applying to the Company) in effect, or under
which any amounts remain unpaid, on the date hereof or to become effective after
the date hereof;
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(e) all labor unions or other organizations representing, purporting to
represent or attempting to represent any employees of the Company, and all
collective bargaining agreements of the Company with any labor unions or other
representatives or employees;
(f) each agreement or other instrument or arrangement defining the
terms on which any indebtedness of the Company (or a guarantee by the Company of
indebtedness) is or may be issued; and
(g) the names and addresses of all banks in which the Company has
accounts or lines of credit, and with respect to each such account or line of
credit, the names of all persons authorized to draw thereon.
The Company is not a party to any oral contract or agreement which
would be required to have been furnished or made available to TBA under this
Section 2.17 had such contract or agreement been committed to writing.
2.18 VALIDITY. There is no default or claimed or purported or alleged
default, or basis on which with notice or lapse of time or both (including
notice of this Agreement), a default would exist, in any obligation on the part
of any party (including the Company) to be performed under any lease, contract,
plan, policy or other instrument or arrangement referred to in Section 2.17 or
otherwise in this Agreement.
2.19 NO CHANGES. Since the date of the Balance Sheet there has not been:
(a) any material adverse change in the business of the Company taken as
a whole;
(b) any material damage, destruction or loss (whether or not covered by
insurance) adversely affecting the business of the Company taken as a whole;
(c) any declaration, setting aside or payment of any dividend, or other
distribution, in respect of any capital stock of the Company or any direct or
indirect redemption, purchase or other acquisition of such stock;
(d) any option to purchase any capital stock of the Company granted to
any person, or any employment or deferred compensation agreement entered into
between the Company and any of its stockholders, officers, directors, employees
or consultants;
(e) any issuance or sale by the Company of any stock, bonds or other
corporate securities, or any partial or complete formation, acquisition,
disposition or liquidation of the Company;
(f) any labor union activity (including without limitation any
negotiation, or request for negotiation, with respect to any union
representation or any labor contract) respecting the Company;
(g) any statute, rule or regulation, or, to the best knowledge of the
Company and TMQ, any government policy, adopted which may materially and
adversely affect the business
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of the Company;
(h) any mortgage, lien, attachment, pledge, encumbrance or security
interest created on any asset, tangible or intangible, of the Company, or
assumed, either by the Company or by others, with respect to any such assets,
except for liens permitted under Section 2.8;
(i) any indebtedness or other liability or obligation (whether
absolute, accrued, contingent or otherwise) incurred, or other transaction
(except that is reflected in this Agreement) engaged in, by the Company, except
those in the ordinary course of business that are individually, or in the
aggregate to one group of related parties, less than fifty thousand dollars
($50,000);
(j) any obligation or liability discharged or satisfied by the Company,
except items included in current liabilities shown on the Balance Sheet and
current liabilities incurred since the date of the Balance Sheet in the ordinary
course of business which are individually, or in the aggregate to one group of
related parties, less than twenty five thousand ($25,000) in amount;
(k) any sale, assignment, lease, transfer or other disposition of any
tangible asset of the Company, except in the ordinary course of business, or any
sale, assignment, lease, transfer or other disposition of its patents,
trademarks, trade names, brand names, copyrights, licenses or other intangible
assets;
(l) any amendment, termination or waiver of any material right
belonging to the Company;
(m) any increase in the compensation or benefits payable or to become
payable by the Company to any of its officers or employees;
(n) any other action or omission by the Company, or the passage of any
resolution, other than in the ordinary course of business.
2.20 LITIGATION OR PROCEEDINGS. The Company is not engaged in, or a party
to, or, to the best of TMQ's and the Company's knowledge, threatened with, any
claim or legal action or other proceeding before any court, any arbitrator of
any kind or any governmental authority, nor does any basis for any claim or
legal action or other proceeding or governmental investigation exist. There are
no orders, rulings, decrees, judgments or stipulations to which the Company is a
party by or with any court, arbitrator or governmental authority affecting the
Company.
2.21 COMPLIANCE WITH LAWS. The Company (i) has not been and is not in
violation of any applicable building, zoning, occupational safety and health,
pension, export control, environmental or other federal, state, local or foreign
law, ordinance, regulation, rule, order or governmental policy applicable to it;
(ii) has not received any complaint from any governmental authority, and to the
best knowledge of TMQ and the Company, none is threatened, alleging that the
Company has violated any such law, ordinance, regulation, rule, order or
governmental policy; (iii) has not received any notice from any governmental
authority of any pending proceedings to take all or any part of the properties
of the Company (whether leased or owned)
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by condemnation or right of eminent domain and, to the best knowledge of TMQ and
the Company, no such proceeding is threatened; and (iv) is not a party to any
agreement or instrument, or subject to any charter or other corporate
restriction or judgment, order, writ, injunction, rule, regulation, code or
ordinance, which materially and adversely affects, or might reasonably be
expected materially and adversely to affect the business of the Company.
2.22 LABOR MATTERS. There are no labor organizing activities, election
petitions or proceedings, labor strikes, disputes, slowdowns, work stoppages or
unfair labor practice complaints pending or, to the best knowledge of TMQ and
the Company, threatened against the Company or between the Company and any of
its employees.
2.23 RECALLS. There is no basis for the recall, withdrawal or suspension of
any approval by any governmental authority with respect to any product sold or
proposed to be sold by the Company. None of the products of the Company is
subject to any recall proceedings and to the best of its knowledge no such
proceedings have been threatened.
2.24 BROKERS AND FINDERS. Neither TMQ nor the Company has employed any
broker, agent or finder or incurred any liability on behalf of TMQ or the
Company or for any brokerage fees, agents' commissions or finders' fees in
connection with the transactions contemplated hereby.
2.25 POWERS OF ATTORNEY. The Company has no powers of attorney or similar
authorizations outstanding.
2.26 NO TERMINATION OF RELATIONSHIP. As of the date hereof, neither TMQ nor
the Company has any reason to expect that any relationship between the Company
and a material distributor, customer, supplier, lender, employee or other person
will be terminated or adversely affected as a result of the transactions
contemplated by this Agreement.
2.27 ALL INFORMATION. TBA has been furnished in writing prior to the
execution of this Agreement all information as to the business of the Company
material to a reasonable buyer's determination to enter into this Agreement and
to consummate the transactions contemplated hereby.
2.28 STATEMENTS TRUE AND CORRECT. The statements contained herein or in any
written documents prepared and delivered by or on behalf of TMQ pursuant to the
terms hereof are true, complete and correct in all material respects, and such
documents do not omit any material fact required to be stated herein or therein
or necessary to make the statements contained herein or therein not misleading.
SECTION 3 - REPRESENTATIONS AND WARRANTIES OF TBA
TBA represents and warrants to TMQ as follows.
3.1 ORGANIZATION. TBA is a corporation duly organized, validly existing and
in good standing under the laws of the state of Delaware and has full corporate
power and authority to
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own, lease and operate its assets and to carry on its business as now being and
as heretofore conducted.
3.2 AUTHORITY. TBA has full right, power, capacity and authority to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of TBA. This
Agreement has been duly and validly executed and delivered by TBA and
constitutes the valid and binding obligation of TBA, enforceable against it in
accordance with the terms hereof. Neither the execution, delivery and
performance of this Agreement nor the consummation of the transactions
contemplated hereby will (i) conflict with or result in a violation, breach,
termination or acceleration of, or default under (or would result in a
violation, breach, termination, acceleration or default with the giving of
notice or passage of time, or both) any of the terms, conditions or provisions
of the Certificate of Incorporation or By-laws of TBA, as amended, or of any
note, bond, mortgage, indenture, license, agreement or other instrument or
obligation to which TBA is a party or by which TBA or any of its properties or
assets may be bound or affected; (ii) result in the violation of any order,
writ, injunction, decree, statute, rule or regulation applicable to TBA or any
of its properties or assets; or (iii) result in the imposition of any lien,
encumbrance, charge or claim upon any of its assets. Except for the listing of
the Purchase Price Shares for trading on the AMEX, no consent or approval by,
or notification to or filing with, any court, governmental authority or third
party is required in connection with the execution, delivery and performance of
this Agreement by TBA or the consummation of the transactions contemplated
hereby. The Purchase Price Shares will be, when issued in accordance with this
Agreement, duly authorized, validly issued, fully paid, nonassessable and free
of pre-emptive rights.
3.3 STATEMENTS TRUE AND CORRECT. The statements contained herein or in any
written documents prepared and delivered by or on behalf of TBA pursuant to the
terms hereof are true, complete and correct in all material respects, and such
documents do not omit any material fact required to be stated herein or therein
or necessary to make the statements contained herein or therein not misleading.
SECTION 4 - COVENANTS AND AGREEMENTS
4.1 CONDUCT OF BUSINESS. Except with the prior written consent of TBA,
which will not be unreasonably withheld or delayed, and except as otherwise
contemplated herein, during the period from the date hereof to the Closing Date,
TMQ shall cause the Company to observe the following covenants:
(a) AFFIRMATIVE COVENANTS PENDING CLOSING. TMQ and the Company
shall:
(i) PRESERVATION OF PERSONNEL. Use all reasonable efforts
to preserve intact the business organization of the Company and keep available
the services of the present employees of the Company, in each case in accordance
with past practice, it being understood that the termination of employees with
poor performance ratings shall not constitute a violation of this covenant;
(ii) INSURANCE. Use all reasonable efforts to keep in
effect casualty, public liability, worker's compensation and other insurance
policies applicable to the Company in
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coverage amounts not less than those in effect at the date of this Agreement;
(iii) PRESERVATION OF THE BUSINESS; MAINTENANCE OF
PROPERTIES. Use all reasonable efforts to preserve the business of the Company,
advertise, promote and market its products and services in accordance with past
practices over the last twelve months, keep their properties intact, preserve
their goodwill, maintain all physical properties in such operating condition as
will permit the conduct of such business on a basis consistent with past
practice;
(iv) INTELLECTUAL PROPERTY RIGHTS. Use all reasonable
efforts to preserve and protect the Proprietary Rights of the Company; and
(v) ORDINARY COURSE OF BUSINESS. Operate the business of
the Company solely in the ordinary course.
(b) NEGATIVE COVENANTS PENDING CLOSING. TMQ shall cause the
Company not to:
(i) DISPOSITION OF ASSETS. Sell or transfer, or mortgage,
pledge or create or permit to be created any lien on, any of the assets of the
Company other than sales or transfers in the ordinary course of business and the
creation of liens under existing arrangements disclosed hereunder and liens
permitted under Section 2.8.
(ii) LIABILITIES. Permit the Company to (A) incur any
obligation or liability other than in the ordinary course of business, (B) incur
any indebtedness for borrowed money in excess of $25,000 or (C) enter into any
contracts or commitments involving payments by the Company of $25,000 or more
other than purchase orders and commitments for inventory, materials and supplies
in the ordinary course of business;
(iii) COMPENSATION. Except as required by applicable law or
any existing employment or severance agreement, (A) change the compensation or
fringe benefits of any officer, director, employee or agent of the Company,
except for ordinary merit increases for employees other than officers based on
periodic reviews in accordance with past practices, or (B) enter into or modify
any employment, severance or other agreement with any officer, director or
employee of the Company or any benefit plan (it being understood that hiring of
at will employees in the ordinary course of business shall not constitute a
violation of this covenant) or (C) enter into or modify any agreement with any
consultant, except for agreements terminable upon not more than one year's
notice that are consistent with past practices with respect to consulting
agreements.
(iv) CAPITAL STOCK. Make any change in the number of
shares of capital stock of the Company authorized, issued or outstanding or
grant any option, warrant or other right to purchase, or to convert any
obligation into, shares of capital stock of the Company, or declare or pay any
dividend or other distribution with respect to any shares of capital stock of
the Company, or sell or transfer any shares of its capital stock;
(v) ORGANIZATIONAL DOCUMENTS. Amend the organizational
documents of the Company;
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(vi) ACQUISITIONS. Make any material acquisition of
property other than in the ordinary course of the business of the Company.
(vii) LICENSE AGREEMENTS. Enter into or modify any license,
technology development or technology transfer agreement between the Company and
any other person or entity.
4.2 CORPORATE EXAMINATIONS AND INVESTIGATIONS. Prior to the Closing Date,
TBA shall be entitled, through its employees and representatives, to have such
access to the assets, properties, business and operations of the Company, as is
reasonably necessary or appropriate in connection with its investigation of the
Company with respect to the transaction contemplated hereby. Any such
investigation and examination shall be conducted at reasonable times and under
reasonable circumstances so as to minimize any disruption to or impairment of
the business and each party shall cooperate fully therein. No investigation by
TBA shall diminish or obviate any of the representations, warranties, covenants
or agreements of TMQ contained in this Agreement. In order that TBA may have
full opportunity to make such investigation, TMQ shall furnish the
representatives of TBA with all such information and copies of such documents
concerning the affairs of the Company as TBA may reasonably request and cause
its officers, employees, consultants, agents, accountants and attorneys to
cooperate fully with TBA's representatives in connection with such
investigation.
4.3 EXPENSES. TBA and TMQ shall bear their respective expenses incurred in
connection with the preparation, execution and performance of this Agreement and
the transactions contemplated hereby, including without limitation, all fees and
expenses of agents, representatives, counsel and accountants.
4.4 AUTHORIZATION FROM OTHERS. Prior to the Closing Date, the parties shall
use all reasonable efforts to obtain all authorizations, consents and permits of
others required to permit the consummation of the transactions contemplated by
this Agreement.
4.5 CONSUMMATION OF AGREEMENT. Each party shall use all reasonable efforts
to perform and fulfill all conditions and obligations to be performed and
fulfilled by it under this Agreement and to ensure that to the extent within its
control or capable of influence by it, no breach of any of its respective
representations, warranties and agreements hereunder occurs or exists on or
prior to the Closing Date, all to the end that the transactions contemplated by
this Agreement shall be fully carried out in a timely fashion.
4.6 FURTHER ASSURANCES. Each of the parties shall execute such documents,
further instruments of transfer and assignment and other papers and take such
further actions as may be reasonably required or desirable to carry out the
provisions hereof and the transactions contemplated hereby.
4.7 LISTING OF SHARES. Promptly after the date hereof, TBA shall take all
action necessary to list the Purchase Price Shares for trading upon the AMEX.
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4.8 PUBLIC ANNOUNCEMENTS AND CONFIDENTIALITY. Any press release or other
information to the press or any third party with respect to this Agreement or
the transactions contemplated hereby shall require the prior approval of TBA and
TMQ, which approval shall not be unreasonably withheld, provided that a party
shall not be prevented from making such disclosure as it shall be advised by
counsel is required by law.
4.9 NO SOLICITATION. Neither TMQ nor the Company will (i) solicit or
initiate discussions with any person, other than TBA, relating to the possible
acquisition of the Company or all or a material portion of the assets or any of
the capital stock of the Company or any merger or other business combination
with the Company (an "ACQUISITION TRANSACTION") or (ii) except to the extent
reasonably required by fiduciary obligations under applicable law as advised by
legal counsel, participate in any negotiations regarding, or furnish to any
other person information with respect to, any effort or attempt by any other
person to do or to seek any Acquisition Transaction. TMQ agrees to inform TBA
within one business day of its receipt of any offer, proposal or inquiry
relating to any Acquisition Transaction.
4.10 INDEMNIFICATION.
(a) RIGHT TO INDEMNIFICATION. TBA and TMQ (as the case may be, the
"INDEMNITEE") shall be indemnified on its respective demand made to the other
(the "INDEMNITOR") for the full amount of all damages (as defined below)
suffered by it as a direct or indirect result of:
(i) the inaccuracy of any representation or warranty made
by the Indemnitor in or pursuant to this Agreement; and
(ii) any failure by the Indemnitor to perform any
obligation or comply with any covenant or agreement specified in this Agreement.
For the purpose of this Section 4.10, the term "DAMAGES" shall be determined and
computed by reference to the effect of the compensable event on the Indemnitee,
and shall be deemed to include (i) all losses, liabilities, expenses or costs
incurred by the Indemnitee, including reasonable attorneys' fees, and (ii)
interest at the 90-Day Commercial Composite Rate plus 25 basis points, set at
the beginning of each quarter, from the date 30 days after notice of any such
claim for indemnification is given to the Indemnitor, or if an unliquidated
claim, from such later date as the claim is liquidated, to the date full
indemnification is made therefor.
(b) INDEMNIFICATION PROCEDURES. The Indemnitee shall give the
Indemnitor notice of any claim, action or proceeding by a third party which is
reasonably likely to result in a claim for indemnification under this Section
4.10. The Indemnitor shall have the right, at its expense, to defend, contest,
protest, settle and otherwise control the resolution of any such claim, action
or proceeding. The Indemnitee shall have the right to participate in any such
legal proceeding, subject to the Indemnitor's right of control thereof, at the
expense of the Indemnitee and with counsel selected by the Indemnitee.
(c) LIMITATIONS ON INDEMNIFICATION. Each of TBA and TMQ shall be
obligated to
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indemnify the other pursuant to this Section 4.10 only with respect to claims as
to which it is given written notice by the Indemnitee on or prior to a date two
years after the Closing.
SECTION 5 - CONDITIONS PRECEDENT TO THE OBLIGATIONS OF TBA
The obligation of TBA to acquire the Shares is subject to the
satisfaction or waiver, at or before the Closing Date, of the following
conditions:
5.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. The representations and
warranties of TMQ contained in this Agreement shall be true and correct in all
material respects on and as of the Closing Date with the same force and effect
as though made on and as of the Closing Date (with such exceptions as may be
permitted under or contemplated by this Agreement) and there shall not have been
any material adverse change in the business of the Company taken as a whole
since the date hereof. TMQ shall have performed and complied in all material
respects with all covenants and agreements required by this Agreement to be
performed or complied with by it on or prior to the Closing Date and shall have
obtained all required consents and approvals. TMQ shall have delivered to TBA a
certificate, dated the Closing Date, to the foregoing effect.
5.2 CERTIFICATES. TMQ shall have furnished TBA with such certificates of
public officials and TMQ's and the Company' officers as may be reasonably
requested by TBA.
SECTION 6 - CONDITIONS PRECEDENT TO THE OBLIGATION OF TMQ
The obligation of TMQ to sell the Shares is subject to the satisfaction
or waiver, at or before the Closing Date, of the following conditions:
6.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. The representations and
warranties of TBA contained in this Agreement shall be true and correct in all
material respects on and as of the Closing Date with the same force and effect
as though made on and as of the Closing Date (with such exceptions as may be
permitted under or contemplated by this Agreement). TBA shall have performed and
complied in all material respects with all covenants and agreements required by
this Agreement to be performed or complied with by it on or prior to the Closing
Date and shall have obtained all required consents and approvals, except for the
listing of the Purchase Price Shares for trading on the AMEX. TBA shall have
delivered to TMQ a certificate, dated the Closing Date, to the foregoing effect.
6.2 CERTIFICATES. TBA shall have furnished TMQ with such certificates of
public officials and of TBA's officers as may be reasonably requested by TMQ.
SECTION 7 - TERMINATION, AMENDMENT AND WAIVER
7.1 TERMINATION. This Agreement may be terminated at any time prior to the
Closing Date as follows:
(a) by TMQ upon written notice to TBA if TBA has materially
breached any representation, warranty, covenant or agreement contained herein
and has not cured such breach
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within ten (10) business days of receipt of written notice from TMQ;
(b) by TBA upon written notice to TMQ if TMQ has materially
breached any representation, warranty, covenant or agreement contained herein
and has not cured such breach within ten (10) business days of receipt of
written notice from TBA;
(c) by either party if any court of competent jurisdiction or
United States or foreign governmental body shall have issued an order, decree or
ruling or taken any other action restraining, enjoining or otherwise prohibiting
the sale of any of the Shares and such order, decree or ruling shall have become
final and nonappealable; or
(d) at any time with the written consent of TBA and TMQ.
7.2 EFFECT OF TERMINATION. If this Agreement is terminated as provided in
Section 7.1, this Agreement shall forthwith become void and have no effect,
without liability on the part of any party, its directors, officers or
stockholders, other than the provisions of this Section 7.2, Section 4.3
relating to expenses and Section 4.8 relating to publicity and confidentiality
to the extent provided therein. Nothing contained in this Section 7.2 shall
relieve any party from liability for any breach of this Agreement occurring
before such termination.
7.3 AMENDMENT. This Agreement may not be amended except by an instrument
signed by each of the parties hereto.
7.4 WAIVER. At any time, any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of any other party hereto or
(b) waive compliance with any of the agreements of any other party or any
conditions to its own obligations, in each case only to the extent such
obligations, agreements and conditions are intended for its benefit; provided
that any such extension or waiver shall be binding upon a party only if such
extension or waiver is set forth in a writing executed by such party.
SECTION 8 - MISCELLANEOUS
8.1 NOTICES. All notices, requests, demands, consents and other
communications which are required or permitted hereunder shall be in writing,
and shall be deemed given when actually received or if earlier, one day after
deposit with a nationally recognized air courier or express mail, charges
prepaid or three days after deposit in the U.S. mail by certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to TMQ:
ThermoQuest Corporation
0000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: President
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If to TBA:
Thermo BioAnalysis Corporation
X.X. Xxx 0000
000 Xxxxxxx Xxxx
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: President
or to such other address as any party hereto may designate in writing to the
other parties, specifying a change of address for the purpose of this Agreement.
8.2 SURVIVAL AND MATERIALITY OF REPRESENTATIONS. Each of the
representations, warranties and agreements made by the parties hereto shall be
deemed material and shall survive the Closing Date and the consummation of the
transactions contemplated hereby. All statements contained in any certificates
or other instruments delivered by or on behalf of the parties pursuant hereto or
in connection with the transactions contemplated hereby shall be deemed material
and shall constitute representations and warranties by the person making such
statement.
8.3 ENTIRE AGREEMENT. This Agreement, including the exhibits, the
Disclosure Schedule and the other documents referred to herein, supersedes any
and all oral or written agreements or understandings heretofore made relating to
the subject matter hereof and constitutes the entire agreement of the parties
relating to the subject matter hereof.
8.4 PARTIES IN INTEREST. All covenants and agreements, representations and
warranties contained in this Agreement made by or on behalf of any of the
parties hereto shall bind and inure to the benefit of the parties hereto, and
their respective successors, assigns, heirs, executors, administrators and
personal representatives, whether so expressed or not.
8.5 NO IMPLIED RIGHTS OR REMEDIES. Except as otherwise expressly provided
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or to give any person, firm or corporation, other than the parties
hereto, any rights or remedies under or by reason of this Agreement.
8.6 HEADINGS. The headings in this Agreement are inserted for convenience
of reference only and shall not be a part of or control or affect the meaning
hereof.
8.7 SEVERABILITY. If any provision of this Agreement shall be declared void
or unenforceable by any judicial or administrative authority, the validity of
any other provision shall not be affected thereby.
8.8 COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
8.9 FURTHER ASSURANCES. TMQ will execute and furnish to TBA all documents
and will do or cause to be done all other things that TBA may reasonably request
from time to time in order to
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give full effect to this Agreement and to effectuate the intent of the parties.
8.10 GOVERNING LAW. This Agreement shall be governed by the law of the State
of Delaware applicable to agreements made and to be performed wholly within such
jurisdiction, without regard to the conflicts of laws provisions thereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first written above.
THERMO BIOANALYSIS CORPORATION
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: President
THERMOQUEST CORPORATION
By: /s/ Xxxxxxx X.X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X.X. Xxxxxxx
Title: President
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