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EXHIBIT 1
THERMO BIOANALYSIS CORPORATION
4,500,000 SHARES*
COMMON STOCK
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
New York, New York
___________, 1998
XXXXX XXXXXX INC.
XXXXXX BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
CIBC XXXXXXXXXXX CORP.
As Representatives of the several Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Thermo BioAnalysis Corporation, a Delaware corporation (the "Company"),
proposes to sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, 4,500,000 shares of Common Stock, $.01 par value ("Common
Stock"), of the Company (said shares to be issued and sold by the Company being
hereinafter called the "Underwritten Securities"). The Company also proposes to
grant to the Underwriters an option to purchase up to 675,000 additional shares
of Common Stock (the "Option Securities"; the Option Securities, together with
the Underwritten Securities, being hereinafter called the "Securities"). To the
extent there are no additional Underwriters listed on Schedule I other than you,
the terms "Representatives" as used herein shall mean you, as Underwriters, and
the terms "Representatives" and "Underwriters" shall mean either the singular or
plural as the context requires. Certain terms used herein are defined in Section
15 hereof.
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* Plus an option to purchase from Thermo BioAnalysis Corporation up to 675,000
additional shares to cover over-allotments.
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The Company currently is a majority-owned subsidiary of Thermo
Instrument Systems Inc., a Delaware corporation ("Thermo Instrument"), which is,
in turn, a majority-owned subsidiary of Thermo Electron Corporation, a Delaware
corporation ("Thermo Electron"). To the extent provided herein and for good and
valuable consideration, Thermo Electron has become a party to this Underwriting
Agreement.
1. Representations and Warranties. The Company and Thermo Electron,
jointly and severally, represent and warrant to, and agree with, each
Underwriter as set forth below in this Section 1. Any certificate signed by any
officer of the Company and delivered to the Representatives or counsel for the
Underwriters shall be deemed a representation and warranty by the Company, as to
matters covered thereby, to each Underwriter.
(a) The Company has prepared and filed with the Commission a
registration statement (File Number 333-______ ) on Form S-1, including a
related preliminary prospectus, for the registration under the Act of the
offering and sale of the Securities. The Company may have filed one or more
amendments thereto, including the related preliminary prospectus, each of which
has previously been furnished to you. The Company will next file with the
Commission either (1) prior to the Effective Date of such registration
statement, a further amendment to such registration statement (including the
form of final prospectus) or (2) after the Effective Date of such registration
statement, a final prospectus in accordance with Rules 430A and 424(b). In the
case of clause (2), the Company has included in such registration statement, as
amended at the Effective Date, all material information (other than Rule 430A
Information) required by the Act and the rules and regulations thereunder to be
included in such registration statement and the Prospectus (subject to the
proviso in paragraph (b) immediately below). As filed, such amendment and form
of final prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, and, except to
the extent the Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein. Upon your
request, but not without your agreement, the Company also will file a Rule
462(b) Registration Statement in accordance with Rule 462(b). To the extent
applicable, the copies of the Registration Statement and each amendment thereto
(including all exhibits filed therewith), any Preliminary Prospectus or
Prospectus (in each case, as amended or supplemented) furnished to the
Underwriters have been and will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to the Commission's Electronic
Data Gathering, Analysis and Retrieval System ("XXXXX"), except to the extent
permitted by Regulation S-T.
(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date
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and on any date on which Option Securities are purchased, if such date is not
the Closing Date (a "settlement date"), the Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable requirements
of the Act and the rules and regulations thereunder; on the Effective Date and
at the Execution Time, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date and any settlement date, the Prospectus
(together with any supplement thereto) will not, include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company and Thermo Electron
make no representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished herein or
in writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto).
(c) The accounting firm(s) whose report(s) appear in the
Prospectus are independent certified public accountants as required by the Act
and the rules and regulations thereunder. The financial statements and schedules
(including the related notes) included in the Registration Statement, any
Preliminary Prospectus or the Prospectus present fairly, in all material
respects, the financial condition, results of operations and cash flows of the
entities purported to be shown thereby at the dates and for the periods
indicated, comply as to form with the applicable accounting requirements of the
Act and have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods involved (except
as otherwise noted therein).
(d) Each of the Company and its Subsidiaries has been duly
organized and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with full corporate power and
authority to own or lease its properties and conduct its business as described
in the Prospectus, and is duly qualified to do business and is in good standing
in each jurisdiction in which the character of the business conducted by it or
the location of the properties owned or leased by it makes such qualification
necessary except where the failure to so qualify or be in good standing would
not have a Material Adverse Effect; and, except as described in the Prospectus,
each of the Company and its Subsidiaries holds all material licenses,
certificates and permits from governmental authorities necessary for the conduct
of its business as described in the Prospectus.
(e) All of the outstanding shares of Common Stock have been,
and the Securities, upon issuance and delivery and payment therefor in the
manner herein described, will
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be, duly authorized, validly issued, fully paid and nonassessable. Other than as
described in the Prospectus, there are no preemptive rights or other rights to
subscribe for or to purchase, or any restriction upon the voting or transfer of,
any shares of Common Stock pursuant to the Company's corporate charter, by-laws
or other governing documents or any agreement or other instrument to which the
Company is a party or by which it may be bound. Neither the filing of the
Registration Statement nor the offering or sale of the Securities as
contemplated by this Agreement gives rise to any rights, other than those which
have been waived or satisfied and other than as described in the Prospectus, for
or relating to the registration of any shares of Common Stock or other
securities of the Company. The capitalization of the Company as of April 4, 1998
is as set forth in the Prospectus, and the Common Stock conforms, in all
material respects, to the description thereof contained in the Prospectus.
Except as set forth in or contemplated by the Prospectus, no options, warrants
or other rights to purchase from the Company, agreements or other obligations of
the Company to issue, or rights to convert any obligations into or exchange any
securities for, shares of capital stock or or ownership interests in the Company
that are issuable by the Company are outstanding. Except as described in the
Prospectus, all of the outstanding shares of capital stock of each Subsidiary of
the Company have been duly authorized and validly issued, are fully paid and
nonassessable and are owned directly or indirectly by the Company, or by Thermo
Electron or another Subsidiary of Thermo Electron, free and clear of any claim,
lien, encumbrance, security interest, restriction upon voting or transfer or any
other claim of any third party.
(f) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any Material Adverse Change or
any adverse development which has a reasonable likelihood of having a Material
Adverse Effect from the date as of which information is given in the Prospectus.
(g) Each of the Company and its Subsidiaries is not, and would
not be with the giving of notice or lapse of time or both, in violation of or in
default under, nor will the execution or delivery hereof or consummation of the
transactions contemplated hereby result in a violation of, or constitute a
default under, its corporate charter, by-laws or other governing documents, or
any material agreement, indenture or other instrument to which it is a party or
by which it is bound, or to which any of its properties is subject, nor will the
performance by the Company of its obligations hereunder violate any existing
law, rule, administrative regulation or decree of any court or any governmental
agency or body having jurisdiction over the Company or any of its properties, or
result in the creation or imposition of any lien, charge, claim or encumbrance
upon any property or asset of the Company, which would be material to the
Company and its Subsidiaries taken as a whole. Except for such permits and
authorizations as have been obtained, no consent, approval, authorization or
order of, or filing with, any court, governmental agency or body or any
financial institution is required in connection with the consummation by the
Company of the transactions contemplated by this Agreement (no representation
being made as to any jurisdiction outside the United States, as to the
securities or
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"Blue Sky" laws of certain jurisdictions, or as to clearance by the National
Association of Securities Dealers, Inc.).
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) Except as described in the Prospectus, each of the Company
and its Subsidiaries owns, or has valid rights to use, all items of real and
personal property which are material to the business of the Company and its
Subsidiaries taken as a whole, free and clear of all liens, encumbrances and
claims which would materially interfere with the business, properties, financial
condition or results of operations of the Company and its Subsidiaries taken as
a whole.
(j) Except as described in the Prospectus, there is no action,
suit or proceeding to which the Company or any of its Subsidiaries is a party or
to which any property of the Company or any of its Subsidiaries is subject or
which is pending or, to the knowledge of the Company or Thermo Electron,
contemplated against the Company or any of its Subsidiaries that is required to
be disclosed in the Prospectus and that is not so disclosed.
(k) There is no franchise, contract or other document of a
character required to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit thereto, which is not described or filed as
required.
(l) Except as described in the Prospectus, each of the Company
and its Subsidiaries is not in violation of any law, ordinance, governmental
rule or regulation or court decree to which it is subject, which violation could
reasonably be expected to have a Material Adverse Effect.
(m) Except as described in the Prospectus, each of the Company
and its Subsidiaries possesses all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct its business, except for those the absence of
which would not have a Material Adverse Effect, and neither the Company nor any
of its Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
(n) Except as disclosed in the Prospectus, each of the Company
and its Subsidiaries owns or possesses adequate licenses or other rights to use
all intellectual property rights, including patents, trademarks, service marks,
trade names, copyrights or know-how, necessary to conduct its business as
described or referred to in the Prospectus, except where such
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failure, singularly or in the aggregate, would not have a Material Adverse
Effect and, except as disclosed in the Prospectus, the Company has not received
any notice of infringement of or conflict with (or knows of any such
infringement of or conflict with) rights or claims of others with respect to any
patents, trademarks, service marks, trade names, copyrights or know-how, that is
reasonably likely to result in a Material Adverse Effect.
(o) The Company has not taken and shall not take, directly or
indirectly, any action designed to cause or result in, or which has constituted
or which would constitute, the stabilization or manipulation of the price of the
shares of Common Stock to facilitate the sale or resale of the Securities in
violation of the Commission's rules and regulations.
(p) The Securities have been approved for listing on the
American Stock Exchange, subject only to official notice of issuance.
1A. Representations and Warranties of Thermo Electron. Thermo
Electron represents and warrants to, and agree with, each Underwriter that:
(a) Thermo Electron has been duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, with full corporate power and authority to own or lease its
properties and conduct its business, and is duly qualified to do business and is
in good standing in each jurisdiction in which the character of the business
conducted by it or the location of the properties owned or leased by it makes
such qualification necessary, except where the failure to so qualify or be in
good standing would not have a Material Adverse Effect.
(b) There has not been any Material Adverse Change with
respect to Thermo Electron from the date as of which information is given in the
most recent quarterly or annual report filed by Thermo Electron pursuant to the
Exchange Act, except any as may have been disclosed to the public.
(c) Except as may be described in its filings under the
Exchange Act, Thermo Electron is not, nor with the giving of notice or lapse of
time or both would Thermo Electron be, in violation of or in default under, nor
will the execution or delivery hereof or consummation of the transactions
contemplated hereby result in a violation of, or constitute a default under, the
corporate charter, by-laws or other governing documents of Thermo Electron, or
any material agreement, indenture or other instrument to which Thermo Electron
is a party or by which it is bound, or to which any of its properties is
subject, nor will the performance by Thermo Electron of its obligations
hereunder violate any existing law, rule, administrative regulation or decree of
any court or any governmental agency or body having jurisdiction over Thermo
Electron or any of its properties, or result in the creation or imposition of
any lien, charge, claim or encumbrance upon any property or asset of Thermo
Electron, which would be material to Thermo Electron and
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its Subsidiaries taken as a whole. Except for such permits and authorizations as
have been obtained, no consent, approval, authorization or order of, or filing
with, any court, governmental agency or body or any financial institution is
required on the part of Thermo Electron in connection with the consummation by
Thermo Electron of the transactions contemplated by this Agreement (no
representation being made as to any jurisdiction outside the United States, as
to the securities or "Blue Sky" laws of certain jurisdictions, or as to
clearance by the National Association of Securities Dealers, Inc.).
(d) This Agreement has been duly authorized, executed and
delivered by Thermo Electron.
(e) Thermo Instrument owns, of record and beneficially, the
number of shares of Common Stock of the Company set forth in the Prospectus as
of the date such information is given, free and clear of any liens,
encumbrances, claims or restrictions, except that certain of such shares are
reserved for issuance pursuant to stock option and other benefit plans under
which options to purchase Common Stock of the Company owned by Thermo Instrument
are granted to certain employees, directors or consultants of Thermo Electron
and its Subsidiaries.
(f) The most recent Annual Report on Form 10-K of Thermo
Electron and any subsequent reports filed pursuant to the Exchange Act complied
as of the date thereof in all material respects with the Exchange Act and the
rules and regulations thereunder.
(g) Neither Thermo Electron nor any Subsidiary of Thermo
Electron has taken and none of such companies shall take, directly or
indirectly, any action designed to cause or result in, or which has constituted
or which would constitute, the stabilization or manipulation of the price of the
shares of Common Stock to facilitate the sale or resale of the Securities in
violation of the Commission's rules and regulations.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $_____ per share, the amount
of the Underwritten Securities set forth opposite such Underwriter's name in
Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not jointly, up
to 675,000 Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
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Securities by the Underwriters. Said option may be exercised in whole or in part
at any time (but not more than once) on or before the 30th day after the date of
the Prospectus upon written or telegraphic notice by the Representatives to the
Company setting forth the number of Option Securities as to which the several
Underwriters are exercising the option and the settlement date. Delivery of
certificates for the Option Securities by the Company, and payment therefor to
the Company, shall be made as provided in Section 3 hereof. The number of Option
Securities to be purchased by each Underwriter shall be the same percentage of
the total number of Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Underwritten Securities,
subject to such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the second Business Day prior to
the Closing Date) shall be made at 10:00 AM, Eastern time, on __________, 1998,
which date and time may be postponed by agreement among the Representatives and
the Company or as provided in Section 9 hereof (such date and time of delivery
and payment for the Securities being herein called the "Closing Date"). Delivery
of the Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the respective aggregate purchase prices of the
Securities being sold by the Company to or upon the order of the Company by wire
transfer payable in same-day funds to the account specified by the Company.
Delivery of the Underwritten Securities and the Option Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the second Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives on the
date specified by the Representatives (which shall be not less than one nor more
than three Business Days after exercise of said option), for the respective
accounts of the several Underwriters, against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day funds to the
account specified by the Company. If settlement for the Option Securities occurs
after the Closing Date, the Company will deliver to the Representatives on the
settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon receipt
of, supplemental opinions, certificates and letters confirming as of such date
the opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
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5. Agreements. The Company and Thermo Electron, jointly and severally,
agree with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the offering
of the Securities, the Company will not file any amendment of the Registration
Statement, supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment, supplement or registration
statement to which you reasonably object. Subject to the foregoing sentence, if
the Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b), the
Company will cause the Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. Upon your request,
the Company will cause the Rule 462(b) Registration Statement, completed in
compliance with the Act and the applicable rules and regulations thereunder, to
be filed with the Commission pursuant to Rule 462(b) and will provide evidence
satisfactory to the Representatives of such filing. The Company will promptly
advise the Representatives (1) when the Registration Statement, if not effective
at the Execution Time, shall have become effective, (2) when the Prospectus or
any supplement thereto shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement shall
have been filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement or any Rule 462(b)
Registration Statement or any supplement to the Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or, to the
Company's knowledge, threatening of any proceeding for that purpose and (6) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Prospectus to comply with the Act or the rules and
regulations thereunder, the Company promptly will (1) notify the Representatives
of any such event; (2) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an
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amendment or supplement which will correct such statement or omission or effect
such compliance; and (3) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its Subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Representatives may reasonably request.
(e) The Company will use its best efforts to arrange, if
necessary, for the qualification of the Securities for sale under the laws of
such U.S. jurisdictions as you may designate and will maintain such
qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Company be obligated to qualify
to do business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject.
(f) The Company and Thermo Electron shall not, and Thermo
Electron shall cause Thermo Instrument not to, during the 180-day period
following the Execution Time, without the prior written consent of Xxxxxxx Xxxxx
Barney, offer, sell or contract to sell, or otherwise dispose of (or enter into
any transaction which is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company, Thermo Electron
or any Subsidiary of Thermo Electron or any person in privity with the Company,
Thermo Electron or any Subsidiary of Thermo Electron) directly or indirectly, or
announce the offering of, any other shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common Stock (except for the
issuance of shares of Common Stock pursuant to existing stock option, purchase
and compensation plans, or upon conversion of any currently outstanding
convertible securities described in the Prospectus or the issuance of shares of
Common Stock as consideration for the acquisition of one or more businesses
provided that such Common Stock may not be resold prior to the expiration of the
180-day period referenced above, or sales of shares of Common Stock by the
Company to Thermo Instrument), or sell or grant options, rights or warrants with
respect to any shares of Common Stock (other than the grant of options pursuant
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to existing stock option, purchase and compensation plans), otherwise than in
accordance with this Agreement or as contemplated in the Prospectus.
(g) The Company and Thermo Electron will not take, and Thermo
Electron will cause its other Subsidiaries not to take, directly or indirectly,
any action designed to or which has constituted or which would cause or result
in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities in violation of the Commission's
rules and regulations.
(h) The Company agrees to pay the costs and expenses relating
to the following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus, the Prospectus,
any Rule 462(b) Registration Statement, and each amendment or supplement to any
of them; (ii) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, each Preliminary Prospectus, the Prospectus, any
Rule 462(b) Registration Statement, and all amendments or supplements to any of
them, as may, in each case, be reasonably requested for use in connection with
the offering and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original issuance
and sale of the Securities; (iv) the printing (or reproduction) and delivery of
this Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of the
Securities; (v) the registration of the Securities under the Exchange Act and
the listing of the Securities on the American Stock Exchange; (vi) any
registration or qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such
registration and qualification); (vii) any filings required to be made with the
National Association of Securities Dealers, Inc. (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such
filings); (viii) the transportation and other expenses incurred by or on behalf
of Company representatives in connection with presentations to prospective
purchasers of the Securities; (ix) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company; and (x) all other costs and expenses incident to the
performance by the Company of its obligations hereunder.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and Thermo Electron
contained herein as of the Execution Time, the Closing Date and any settlement
date pursuant to Section 3 hereof, to the accuracy of the statements of the
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Company and Thermo Electron made in any certificates pursuant to the provisions
hereof, to the performance by the Company and Thermo Electron of their
respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later than (i)
6:00 PM Eastern time on the date of determination of the public offering price,
if such determination occurred at or prior to 3:00 PM Eastern time on such date,
or (ii) 12:00 Noon on the Business Day following the day on which the public
offering price was determined, if such determination occurred after 3:00 PM
Eastern time on such date; if filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and any such
supplement, will be filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion of Xxxx X. Xxxxxxxxx, General Counsel of the Company, Thermo
Instrument and Thermo Electron, dated the Closing Date, to the effect that:
(i) Each of the Company and its Significant
Subsidiaries has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own or lease
its properties and conduct its business as described in the Prospectus,
and is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business conducted by it or
the location of the properties owned or leased by it makes such
qualification necessary, except where the failure to so qualify or be
in good standing would not have a Material Adverse Effect.
(ii) Each of Thermo Electron and its Significant
Subsidiaries (as defined in Section 15) has been duly organized and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with full corporate power and
authority to own or lease its properties and conduct its business as
described in the Prospectus;
(iii) the Company's authorized capital stock is as
set forth in the Prospectus under the caption "Capitalization"; the
capital stock of the Company conforms as to legal matters in all
material respects to the description thereof contained in the
Prospectus; the outstanding shares of Common Stock have been duly and
validly authorized and issued and are, to the best of such counsel's
knowledge, fully paid and nonassessable; the Securities have been duly
and validly authorized, and, when issued
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and delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable; the Securities are
duly authorized for listing, subject to official notice of issuance, on
the American Stock Exchange; the certificates for the Securities are in
valid and sufficient form; there are no preemptive or other rights to
subscribe for or to purchase, or any restriction upon the voting or
transfer of, any of the Securities pursuant to the Company's corporate
charter, by-laws, other governing documents, or any agreement or other
instrument known to such counsel to which the Company or a Subsidiary
thereof is a party or by which the Company or a Subsidiary thereof may
be bound or to which any of their respective properties is subject;
and, to such counsel's knowledge, neither the filing of the
Registration Statement nor the offering or sale of the Securities as
contemplated by this Agreement gives rise to any rights for or relating
to the registration of any shares of Common Stock except such as have
been waived or satisfied, except as described in the Prospectus; except
as set forth in, or contemplated by, the Prospectus, including options
granted or to be granted pursuant to stock and employee benefit plans
described therein, to such counsel's knowledge, no options, warrants or
other rights to purchase from the Company, agreements or other
obligations on the part of the Company to issue, or rights to convert
any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company that are issuable by the
Company are outstanding; and, except as described in the Prospectus,
all of the outstanding shares of capital stock of each Significant
Subsidiary of the Company have been duly and validly authorized and
issued and are, to the best of such counsel's knowledge, fully paid and
nonassessable and are owned directly or indirectly by the Company free
and clear of any claim, lien, encumbrance or security interest known to
such counsel (except for certain obligations of the Company pursuant to
stock and employee benefit plans maintained for the benefit of
employees, officers, directors and consultants of Thermo Electron and
its Subsidiaries);
(iv) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any Subsidiary required to be disclosed in the Registration
Statement which is not so disclosed, and there is no franchise,
contract or other document required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, which is not
described or filed as required;
(v) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement as of the Effective Date and the Prospectus as of its date
(other than the financial statements and schedules and other financial,
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statistical and accounting information contained therein as to which
such counsel need express no opinion) complied as to form in all
material respects with the applicable requirements of the Act and the
rules and regulations thereunder;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company and Thermo Electron;
(vii) no consent, approval, authorization, filing
with or order of any court or governmental agency or body is required
for the consummation by the Company of the transactions contemplated
herein, except such as have been obtained under the Act, such as may be
required under the blue sky and state securities laws of any
jurisdiction applicable to the offering and sale of the Securities by
the Underwriters and such as may be required for the clearance of the
underwriting arrangements relating to such offering and sale with the
National Association of Securities Dealers, Inc. (as to which such
counsel need express no opinion), and such other approvals (specified
in such opinion) as have been obtained; and
(viii) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will conflict
with, result in a breach or violation of, or constitute a default under
any law or the charter or by-laws of the Company (or any of its
Significant Subsidiaries), Thermo Instrument or Thermo Electron, or the
terms of any indenture or other agreement or instrument known to such
counsel and to which the Company (or any of its Significant
Subsidiaries), Thermo Instrument or Thermo Electron, is a party or
bound or any statute, law, rule or regulation, or any judgment, order
or decree known to such counsel, applicable to the Company (or any of
its Significant Subsidiaries) or to Thermo Instrument or Thermo
Electron of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or any of such entities or any of its or their
respective properties (other than statutes, laws, rules and regulations
pertaining to securities laws matters, which are addressed elsewhere in
such opinion).
In addition, such counsel shall state that he or members of his staff
have participated in conferences with officers and other representatives of the
Company, representatives of the independent accountants of the Company,
representatives of the Underwriters and representatives of counsel for the
Underwriters, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although such counsel need
not pass upon, and need not assume any responsibility for, the accuracy,
completeness or fairness of any statement contained in the Registration
Statement or the Prospectus (except for those statements referred to in the
opinions expressed in the first two clauses of subsection (iii) above) and has
made no independent check or verification thereof, such counsel shall state that
on the basis of
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the foregoing, no facts have come to such counsel's attention that has led such
counsel to believe that the Registration Statement, on the Effective Date or at
the Execution Time, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, as of its date or
the date of such opinion, included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that such counsel need express no opinion or belief
with respect to the financial statements, financial statement schedules and
other financial, accounting and statistical data included therein.
In rendering such opinion, such opinion shall be limited to matters
involving the application of laws of the Commonwealth of Massachusetts, the
United States or the General Corporation Law of the State of Delaware and
further such counsel may rely as to matters of fact, to the extent such counsel
deems proper, on certificates of officers of the Company and public officials.
References to the Prospectus in this paragraph (b) include any supplements
thereto.
(c) The Representatives shall have received from Xxxxx,
Xxxxxxx & Xxxxxxxxx, LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale of the
Securities, the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board, Chief Executive
Officer, the President or a Vice President and the Treasurer or Secretary of the
Company, dated the Closing Date or the applicable settlement date, to the effect
that the signers of such certificate have carefully examined the Registration
Statement, the Prospectus, any supplements to the Prospectus and this Agreement
and that, to the best of such person's knowledge:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the date of the
certificate with the same effect as if made on the date of the
certificate, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date or the settlement date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to such person's knowledge,
threatened; and
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(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement
thereto), there has been no Material Adverse Change, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(e) Thermo Electron shall have furnished to the
Representatives a certificate of Thermo Electron, signed by its President or a
Vice President and by its Treasurer or Secretary, dated the Closing Date or the
applicable settlement date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Prospectus, any
supplements to the Prospectus and this Agreement and that, to the best of such
person's knowledge:
(i) the representations and warranties of Thermo
Electron in this Agreement are true and correct on and as of the date
of the certificate with the same effect as if made on the date of the
certificate, and Thermo Electron has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date or the settlement date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the best of such person's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement
thereto), there has been no Material Adverse Change, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(f) On the date of this Agreement, the Closing Date and any
settlement date you shall have received a letter from each accounting firm whose
report appears in the Prospectus, dated the date of this Underwriting Agreement,
the Closing Date or the settlement date, as the case may be, and addressed to
you, confirming that they are independent certified public accountants within
the meaning of the Act and the rules and regulations thereunder, and stating, as
of the date of such letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date of each such letter), the conclusions and findings of each
such firm with respect to the financial information and other matters covered by
its letter delivered to you concurrently with the execution of this Agreement,
and with respect to each letter delivered on the Closing Date or the settlement
date confirming the conclusions and findings set forth in such prior letter.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive of any
amendment thereof) and the
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Prospectus (exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to in
paragraph (f) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Company and its Subsidiaries as a whole,
whether or not from transactions arising in the ordinary course of business, the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto).
(h) The Securities shall have been listed and admitted and
authorized for trading on the American Stock Exchange, and satisfactory evidence
of such actions shall have been provided to the Representatives.
(i) Prior to the Closing Date or the settlement date, as
applicable, the Company shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, counsel for the
Underwriters, at 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, on the Closing Date or
the settlement date, as applicable.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company or Thermo Electron to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company (or Thermo Electron)
will reimburse the Underwriters severally through Xxxxxxx Xxxxx Barney upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
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8. Indemnification and Contribution.
(a) The Company and Thermo Electron, jointly and severally,
agree to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement made by the Company or Thermo Electron in Section 1 hereof or
by Thermo Electron in Section 1A hereof, (ii) any untrue statement or alleged
untrue statement of a material fact contained in the registration statement for
the registration of the Securities as originally filed or in any amendment
thereof, or in any Preliminary Prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and (iii) any act or
failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Securities or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company and Thermo
Electron shall not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly or indirectly from
any such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct or breach of this
Agreement); and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company and Thermo Electron will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein
and (ii) with respect to any untrue statement or omission of a material fact
made in any Preliminary Prospectus, the indemnity agreement contained in this
Section 8(a) shall not inure to the benefit of any Underwriter (or any of the
directors, officers, employees and agents of such Underwriter or any controlling
person of such Underwriter) from whom the person asserting any such loss, claim,
damage or liability purchased the Securities concerned, to the extent that any
such loss, claim, damage or liability of such Underwriter occurs under the
circumstances where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (w) the Company had
previously furnished copies of the Prospectus to the Underwriters, (x) delivery
of the Prospectus was required by the Act to be made to such person, (y) the
untrue statement or omission of a material fact contained in the Preliminary
Prospectus was corrected in the Prospectus and
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(z) there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the
Prospectus. This indemnity agreement will be in addition to any liability which
the Company or Thermo Electron may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, Thermo Instrument, Thermo Electron, their respective
employees, agents, officers and directors, and each other person who controls
the Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company and Thermo Electron to
each Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents referred
to in the foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company and Thermo
Electron acknowledge that the statements set forth in the last paragraph of the
cover page, the paragraph containing stabilization information on the inside
front cover page and the sentences related to concessions and reallowances and
the paragraph relating to stabilization, syndicate covering transactions and
penalty bids under the heading "Underwriting" in any Preliminary Prospectus and
the Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary Prospectus
or the Prospectus, and you, as the Representatives, confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of such claim or commencement; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a) or
(b) above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in, and to control the defense of, any claim or action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
Company (if it, Thermo Electron, Thermo Instrument or any of their respective
employees, agents, officers and directors, or any person controlling the Company
is the indemnified party) or Xxxxx Xxxxxx, Inc. (if it or any other Underwriter
or any of their respective employees, agents, officers and directors, or any
person controlling such Underwriter is the indemnified party). Notwithstanding
the indemnifying party's election to appoint counsel to represent the
indemnified party in, and to control the defense of, an action or claim, the
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indemnified party shall have the right to employ separate counsel (including
local counsel), which shall control the defense of any claim or action against
the indemnified party, and the indemnifying party shall bear the reasonable
fees, costs and expenses of one such separate counsel for all indemnified
parties if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party (as set forth in the preceding sentence), to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. No indemnified party may
settle any claim or action for which a claim in respect thereof has been or is
to be made against an indemnifying party under this Section 8 without the prior
written consent of the indemnifying party.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, Thermo Electron and the
Underwriters agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
Company and one or more of the Underwriters may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Company and
Thermo Electron on the one hand, and by the Underwriters severally on the other,
from the offering of the Securities; provided, however, that in no case shall
any Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
Thermo Electron, on the one hand, and the Underwriters on the other, shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and Thermo Electron
on the one hand, and of the Underwriters on the other, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company and Thermo
Electron shall be deemed to be equal to the total net proceeds from
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the offering (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Prospectus.
Relative fault shall be determined by reference to, among other things, whether
any untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information provided by the Company
or Thermo Electron on the one hand, or the Underwriters on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, Thermo Electron and the Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer, director, employee and agent
of the Company, Thermo Instrument and Thermo Electron shall have the same rights
to contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
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10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the American Stock Exchange or trading in securities generally on
the New York Stock Exchange or the American Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on either the
New York Stock Exchange or the American Stock Exchange, (ii) a banking
moratorium shall have been declared either by Federal, New York State or
Massachusetts authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any supplement
thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, or Thermo Electron, and of the Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or faxed (fax. no. 000-000-0000) care of Xxxxxxx Xxxxx Xxxxxx, at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, attention: Syndicate Department;
or, if sent to the Company, will be mailed, delivered or faxed (fax no.
000-000-0000) at Thermo BioAnalysis Corporation, 000 Xxxxxxx Xxxx, Xxxxx Xx, Xxx
Xxxxxx 00000-0000, attention: President, with a copy mailed, delivered or faxed
(fax. no. 000-000-0000), to Xxxx X. Xxxxxxxxx, Esq., General Counsel, Thermo
Electron Corporation, 00 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000-0000.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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15. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City or Boston, Massachusetts.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date that the Registration
Statement, any post-effective amendment or amendments thereto and any
Rule 462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Material Adverse Change" or "Material Adverse Effect" shall
mean any material adverse change in, or material adverse effect upon,
the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its Subsidiaries taken as a whole, or
of Thermo Electron and its Subsidiaries taken as a whole, as the case
may be, whether or not arising from transactions arising in the
ordinary course of business.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any
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Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended
or such Rule 462(b) Registration Statement, as the case may be. Such
term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the initial registration statement
(file number 333__________). For purposes of this Agreement, all
references to the Registration Statement, any Preliminary Prospectus,
the Prospectus, or any amendment or supplement to any of the foregoing,
shall be deemed to include the respective copies thereof filed with the
Commission pursuant to XXXXX..
"Xxxxxxx Xxxxx Xxxxxx" shall mean Xxxxx Xxxxxx Inc. or Salomon
Brothers Inc to the extent that either such party is a signatory to
this Agreement.
"Significant Subsidiary" shall have the meaning set forth in
Item 1-02 of Regulation S-X under the Act.
"Subsidiary" shall have the meaning set forth in Rule 405
under the Act.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, Thermo Electron and the several Underwriters.
Very truly yours,
THERMO BIOANALYSIS CORPORATION
By: _____________________________________
Name:
Title:
THERMO ELECTRON CORPORATION
By: _____________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXX XXXXXX INC.
XXXXXX BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
CIBC XXXXXXXXXXX CORP.
By: XXXXX XXXXXX INC.
By:_______________________________________
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
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SCHEDULE I
Number of Shares of
Underwritten Securities
Underwriters To Be Purchased
------------ ------------------------
Xxxxx Xxxxxx Inc.................................................
Xxxxxx Brothers Inc..............................................
Prudential Securities Incorporated...............................
CIBC Xxxxxxxxxxx Corp. ..........................................
TOTAL............................................................ 4,500,000
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