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SHARE PURCHASE AGREEMENT
BETWEEN
THERMO BIOANALYSIS CORPORATION
AND
THERMO INSTRUMENT SYSTEMS INC.
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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
Thermo Instrument Systems Inc. ("THI"), a Delaware corporation.
PRELIMINARY STATEMENT
1. Life Sciences International Limited ("LSI"), which is a wholly-owned
subsidiary of THI, owns, directly or through wholly-owned subsidiaries, all of
the issued and outstanding shares (the "SHARES") of Shandon Inc., Shandon
Scientific Ltd. and Life Sciences International SNC. THI, LSI and those of LSI's
wholly-owned subsidiaries that own Shares are referred to individually as a
"SELLER" and collectively as the "SELLERS." Shandon Inc., Shandon Scientific
Ltd., and Life Sciences International SNC are sometimes collectively referred to
herein as the "COMPANY."
2. TBA desires to purchase, or cause its wholly-owned subsidiaries to
purchase, and THI desires to sell, or to cause its subsidiaries to sell, all of
the issued and outstanding shares of Shandon Inc., Shandon Scientific Ltd. and
Life Sciences International SNC, 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 THE SELLERS. Subject to and upon the terms
and conditions of this Agreement, at the closing of the transactions
contemplated by this Agreement (the "CLOSING"), THI shall cause its subsidiaries
to 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. At the option of TBA, TBA may acquire the Shares of
Shandon Inc. by effecting the merger of a subsidiary of TBA (the "MERGER SUB")
with and into Shandon Inc., pursuant to which merger (i) the Sellers' shares of
Shandon Inc. would be canceled in exchange for a portion of the total
consideration set forth in Section 1.3 below and (ii) Merger Sub's shares would
be converted into shares of Shandon Inc., the surviving corporation.
1.2 FURTHER ASSURANCES. At any time and from time to time prior to and
after the Closing, at TBA's request and without further consideration, each
Seller shall promptly execute and deliver such instruments of sale, transfer,
conveyance, assignment and confirmation, including agreements of merger, 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 such Seller, 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.
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1.3 PURCHASE PRICE. The purchase price to be paid by TBA for the Shares
(the "PURCHASE PRICE") shall consist of 3,007,830 shares (the "TBA SHARES") of
common stock, $.01 par value, of TBA (the "TBA COMMON STOCK"), provided that the
TBA Shares are listed on the American Stock Exchange (the "AMEX"), in accordance
with Section 4.7 hereto, on or prior to January 2, 1999. If the TBA Shares are
not so listed on the AMEX on or prior to January 2, 1999, TBA will pay a
purchase price of $66,662,536.29 in cash to THI and/or such of its subsidiaries
as THI shall designate, on January 2, 1999.
1.4 CLOSING. The Closing shall take place at the offices of THI at 00 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx on or about May 27, 1998 (the "CLOSING DATE"). At
the Closing, THI shall deliver, or cause its subsidiaries to deliver,
certificates evidencing the Shares duly endorsed in blank or with stock powers
duly executed. At the Closing, if the TBA Shares have been listed on the AMEX in
accordance with Section 4.7 hereto, TBA shall deliver one or more certificates
representing the TBA Shares registered in the name of THI and/or such of its
subsidiaries as THI shall designate. If the TBA Shares have not been so listed,
TBA will deliver to THI an instrument obligating TBA to pay the Purchase Price,
in accordance with Section 1.3, to THI and/or such of its subsidiaries as THI
shall designate on the earlier of (i) the date the TBA Shares are listed on the
AMEX in accordance with Section 4.7 hereto and (ii) January 2, 1999. If the
Purchase Price is to be paid in cash, interest shall accrue on the amount of the
Purchase Price from the Closing Date until the date of payment at the 90-Day
Commercial Composite Rate plus 25 basis points, set at the beginning of each
quarter. If the Purchase Price is to be paid with the TBA Shares, the number of
TBA Shares shall be adjusted to prevent dilution if between the Closing Date and
the date of issuance of the TBA 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 THI
Except as set forth on the disclosure schedule delivered to TBA on the
date hereof (the "DISCLOSURE SCHEDULE"), THI 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 the Sellers 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 the Sellers 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. THI has full right, power, capacity and authority to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby and each of
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the Sellers has full right, power, capacity and authority to consummate the
transactions contemplated hereby to be performed by such Seller. 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 THI. This Agreement has been duly and
validly executed and delivered by THI and constitutes the valid and binding
obligation of THI, 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 any Seller or the
Company, or of any note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which any Seller or the Company is a party or by
which any Seller 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 any Seller 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
third party is required in connection with the execution, delivery and
performance of this Agreement by any Seller 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. The Seller or Sellers set forth opposite the name of each company
comprising the Company on EXHIBIT A is or are the record and beneficial owner(s)
of all of the issued and outstanding shares of each such 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 Disclosure Schedule sets forth all Subsidiaries of the Company
and the jurisdiction in which each is incorporated. All shares of the capital
stock of each Subsidiary owned by the Company are owned free and clear of any
charges, liens, encumbrances, security interests or adverse claims. As used in
this Agreement, "SUBSIDIARY" means any corporation or
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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 and representations, warranties
and covenants referring to the Company contained herein shall be deemed to mean
the Company and each of its Subsidiaries, both separately and together as a
consolidated whole, unless and except to the extent expressly indicated
otherwise.
(b) There are no other shares of capital stock of any Subsidiary 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 any Subsidiary of the Company to issue,
transfer, sell, repurchase or redeem any shares of its capital stock or other
securities. There are no shareholder agreements, voting trusts, proxies or other
agreements, instruments or understandings with respect to the voting of the
capital stock of any Subsidiary of the Company.
(c) Except for its Subsidiaries, 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. THI has delivered to TBA prior to the execution of
this Agreement true and complete copies of: the consolidated balance sheets of
the Company as of December 31, 1996 and 1995, and the consolidated statements of
operations, cash flows and changes in stockholder's equity of the Company for
each of the two years in the period ended December 31, 1996 and for the period
beginning January 1, 1997 and ended March 12, 1997, as audited by Xxxxxx
Xxxxxxxx LLP, the Company's certified public accountants. In addition, THI has
delivered to TBA prior to the execution of this Agreement, true and complete
copies of the unaudited consolidated balance sheets of the Company as of March
12, 1997 and April 4, 1998 and the unaudited consolidated statements of
operations for the period beginning March 13, 1997 and ended January 3, 1998 and
the three month period ended April 4, 1998. Collectively, the financial
statements referred to in the preceding two sentences are sometimes referred to
herein as the "Financial Statements" and the unaudited consolidated balance
sheet of the Company as of April 4, 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 THI and fairly present the financial condition,
results of operations, cash flows and shareholder's equity of the Company as at
the dates and for the periods 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 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)
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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 the Sellers, 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 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
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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) THI 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 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
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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 the Sellers 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. None of the
Company or the Sellers 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. None of
the Company or the Sellers 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 any of the Sellers received any notice or claim from any third party of such
infringement by the Company. None of the Company or the Sellers 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 the Sellers, 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
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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. THI 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) THI 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 THI 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) THI 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 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. None of the Sellers or the Company or their respective affiliates
has ever participated in a "multiemployer pension plan" as defined in Section
3(37) of ERISA.
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(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. THI 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 two hundred fifty thousand dollars ($250,000) 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;
(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
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(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 the Sellers, any government policy, adopted which may materially and
adversely affect the business 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,
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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 one hundred thousand dollars ($100,000);
(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 one hundred thousand dollars ($100,000) 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 the Sellers' 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 the Sellers 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) by condemnation or right of eminent
domain and, to the best knowledge of the Sellers 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.
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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 the
Sellers 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. None of the Sellers or the Company has employed any
broker, agent or finder or incurred any liability on behalf of any of the
Sellers 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, none of the
Sellers or 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 THI 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 THI 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 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
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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, except that approval of the
TBA shareholders is required to list the TBA Shares on the AMEX. 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 TBA 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 TBA 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,
THI shall cause the Sellers and the Company to observe the following covenants:
(a) AFFIRMATIVE COVENANTS PENDING CLOSING. The Sellers 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 coverage amounts not less than those in effect at
the date of this Agreement;
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(iii) PRESERVATION OF THE BUSINESS; MAINTENANCE OF PROPERTIES.
Except as set forth in Section 4.1(b)(i), 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. THI shall cause each of the
Sellers and 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:
(A) the completion of documents and other instruments
relating to the transfer of the Portsmouth, New Hampshire real property from the
Company to LSI (US) Inc.
(B) the completion of documents and other instruments
relating to the transfer of all of the issued and outstanding shares of Life
Sciences International (UK) Limited from the Company to ThermoQuest Corporation
in accordance with the Asset and Share Purchase Agreement dated July 30, 1997
between ThermoQuest Corporation and THI.
(C) sales or transfers in the ordinary course of
business.
(D) 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 $100,000 or (C) enter into any
contracts or commitments involving payments by the Company of $100,000 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
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(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;
(vi) ACQUISITIONS. Make any material acquisition of property
other than in the ordinary course of the business of the Company other than
substantially all of the assets of Xxxxxxxx Refrigeration, Inc. ("XXXXXXXX") in
accordance with the terms of the Letter of Intent dated February 27, 1998
between Shandon Inc. and Xxxxxxxx.
(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 THI contained in this Agreement. In order that TBA may have
full opportunity to make such investigation, THI 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 THI 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
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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 use its
best efforts to take all action necessary in accordance with applicable law to
convene a meeting of its shareholders to be held for the purpose of approving
the listing of the TBA Shares for trading upon AMEX in accordance with Section
712 of AMEX's Listing Standards, Policies and Requirements. In connection with
such meeting, TBA's Board of Directors shall recommend to the TBA shareholders
the approval of the listing of the TBA Shares pursuant to this Agreement. THI
hereby agrees to vote all of the shares of TBA Common Stock held by it as of the
record date of any such meeting in favor of the listing of the TBA Shares and
all such related matters. TBA shall use all reasonable efforts to obtain all
votes and approvals of the TBA shareholders necessary for the listing of the TBA
Shares prior to January 2, 1999.
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
THI, 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. None of the Sellers or 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. THI 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 THI (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
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(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 THI shall be
obligated to 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.
4.11 TAX-FREE QUALIFICATION. THI and TBA agree that they will take no actions
not contemplated by this Agreement that would cause the transaction not to
qualify as a tax-free reorganization under Section 368 of the Internal Revenue
Code.
4.12 CONTINUED PARTICIPATION IN PENSION PLAN. TBA and THI agree that, after
the Closing, employees of Shandon Scientific Ltd. and its subsidiaries shall
continue to be eligible to participate in the Life Sciences International
Limited Pension Plan subject to the same or comparable terms and conditions as
those to which they are currently subject. TBA will be charged for its
attributable portion of the pension costs associated with such plan.
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 THI 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. THI shall have performed and complied in all material
respects with all
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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. THI shall have delivered to TBA a certificate, dated the
Closing Date, to the foregoing effect.
5.2 CERTIFICATES. THI shall have furnished TBA with such certificates of
public officials and of the Sellers' or the Company' officers as may be
reasonably requested by TBA.
SECTION 6 - CONDITIONS PRECEDENT TO THE OBLIGATION OF THI
The obligation of THI 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
approval of the TBA shareholders of the listing of the TBA Shares on the AMEX.
TBA shall have delivered to LSI a certificate, dated the Closing Date, to the
foregoing effect.
6.2 CERTIFICATES. TBA shall have furnished THI with such certificates of
public officials and of TBA's officers as may be reasonably requested by THI.
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 THI upon written notice to TBA if TBA 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 THI;
(b) by TBA upon written notice to THI if THI 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 THI.
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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 THI:
Thermo Instrument Systems Inc.
000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxx, Xxxxx 00000
Attention: President
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.
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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. THI 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 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
THERMO INSTRUMENT SYSTEMS INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: President
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