1
Exhibit 1.1
1,075,000 Shares
THERMO VISION CORPORATION
Common Stock
($.01 par value)
UNDERWRITING AGREEMENT
December , 1997
XXXXXXXXXX & CO. INC.
HSBC SECURITIES, INC.,
As Representatives of the several
Underwriters named in Schedule I hereto
c/o Fahnestock & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Thermo Vision Corporation, a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several underwriters named in Schedule I
hereto (the "UNDERWRITERS") 1,075,000 shares (the "FIRM SHARES") of Common
Stock, $.01 par value (such class of stock being herein called the "COMMON
STOCK"), of the Company. In addition, for the sole purpose of covering
over-allotments in connection with the sale of the Firm Shares, the Company
proposes to grant to the Underwriters an option to purchase up to an additional
161,250 shares (the "OPTION SHARES") of Common Stock. The Firm Shares and any
Option Shares purchased pursuant to this Agreement are referred to herein as the
"SHARES."
This is to confirm the agreement concerning the purchase of the Shares
from the Company by the Underwriters. You represent and warrant that you are
acting as the representatives (the "REPRESENTATIVES") of the Underwriters and
that you have been authorized by each of the other Underwriters to enter into
this Underwriting Agreement on its behalf and to act for it in the manner herein
provided.
The Company currently is a majority-owned subsidiary of Thermo Optek
Corporation, a Delaware corporation ("THERMO OPTEK"), which is in turn 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,
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each of Thermo Optek, Thermo Instrument and Thermo Electron has become a party
to this Underwriting Agreement.
Prior to the Closing Date, as defined herein, Thermo Optek will
distribute to its shareholders, including Thermo Instrument, all of the shares
of Common Stock owned by it in a tax-free pro rata distribution to its
shareholders of record on the related record date. This distribution is referred
to herein as the "SPIN-OFF TRANSACTION."
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY, THERMO OPTEK,
THERMO INSTRUMENT AND THERMO ELECTRON. The Company, Thermo Optek, Thermo
Instrument and Thermo Electron jointly and severally represent and warrant to,
and agree with, each Underwriter as follows. The following representations,
warranties and agreements shall be deemed to apply to each Subsidiary (as
defined in Section 13) of the Company, unless the context does not permit:
(a) A registration statement on Form S-1 (File No. 333-38153) with
respect to the Shares (i) has been prepared by the Company in material
conformity with the requirements of the Securities Act of 1933, as amended
(the "SECURITIES ACT"), and the rules and regulations (the "RULES AND
REGULATIONS") of the Securities and Exchange Commission (the "COMMISSION")
thereunder, (ii) has been filed with the Commission under the Securities
Act and (iii) has become effective under the Securities Act. If any
post-effective amendment to such registration statement has been filed
with the Commission prior to the execution and delivery of this Agreement,
the most recent such amendment has been declared effective by the
Commission. Copies of such registration statement as amended to date have
been delivered by the Company to the Representatives and, to the extent
applicable, were 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. For purposes of this Agreement,
"EFFECTIVE TIME" means the date and the time as of which such registration
statement, or the most recent post-effective amendment thereto, if any,
was declared effective by the Commission; "EFFECTIVE DATE" means the date
of the Effective Time; "PRELIMINARY PROSPECTUS" means each prospectus
included in such registration statement, or amendments thereof, before it
became effective under the Securities Act and any prospectus filed with
the Commission by the Company pursuant to Rule 424(a) of the Rules and
Regulations; "REGISTRATION STATEMENT" means such registration statement,
as amended at the Effective Time, including all information deemed to be a
part thereof as of the Effective Time pursuant to paragraph (b) of
Rule 430A of the Rules and Regulations together with any registration
statement filed by the Company pursuant to Rule 462(b) of the Rules and
Regulations; and "PROSPECTUS" means (i) the form of prospectus relating to
the Shares, as first filed pursuant to paragraph (1) or (4) of Rule 424(b)
of the Rules and Regulations or (ii) the term sheet or abbreviated term
sheet described in Rule 434(b) of the Rules and Regulations, as first
filed pursuant to paragraph (7) of Rule 424(b) of the Rules and
Regulations together with the last preliminary prospectus included in the
Registration Statement filed prior to the Effective Time or filed pursuant
to Rule 424(a) of the Rules and Regulations that is delivered by the
Company to the Underwriters for delivery to purchasers of the Shares. The
Commission has not issued any order preventing or suspending the use
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of any Preliminary Prospectus or the Prospectus. 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.
(b) The Registration Statement complies in all material respects with
the Securities Act and the Rules and Regulations, and any post-effective
amendment to the Registration Statement filed with the Commission after
the Effective Time, the Prospectus and the Prospectus as amended or
supplemented will comply in all material respects with the Securities Act
and the Rules and Regulations; at the time of filing thereof, any
Preliminary Prospectus did not, and on the Effective Date, the
Registration Statement did not, and any post-effective amendment to the
Registration Statement filed with the Commission after the Effective Time,
the Prospectus and the Prospectus as amended or supplemented will not,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that the Company, Thermo
Optek, Thermo Instrument and Thermo Electron make no representation or
warranty as to information contained in or omitted from the Registration
Statement, the Preliminary Prospectus, the Prospectus, any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus in reliance upon, and in conformity with, written information
furnished to the Company by you, or by any Underwriter through you,
specifically for inclusion therein. There is no contract or document
required to be described in the Registration Statement or the Prospectus
or to be filed as an exhibit to the Registration Statement which is not
described or filed as required.
(c) The accounting firms whose reports appear in the Prospectus are
independent certified public accountants as required by the Securities Act
and the Rules and Regulations. 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 and have been prepared in accordance with generally
accepted accounting principles.
(d) The Company 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 on the Company and its Subsidiaries taken
as a whole; and, except as described in the Prospectus, the Company holds
all material licenses, certificates and permits from governmental
authorities necessary for the conduct of its business as described in the
Prospectus.
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(e) All of the outstanding shares of Common Stock have been, and the
Shares, upon issuance and delivery and payment therefor in the manner
herein described, will 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 Shares as contemplated by this
Agreement, nor the Spin-Off Transaction, 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, on an actual and as adjusted basis, is as set forth in the
Prospectus as of the date so set forth, and the Common Stock conforms, in
all material respects, to the description thereof contained in the
Prospectus. All of the outstanding shares of capital stock of each
Subsidiary (as defined in Section 13) of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and are
owned directly or indirectly by the Company, 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 in, or any adverse development which materially affects, the
condition (financial or other), results of operations, business or
prospects of the Company and its Subsidiaries on a consolidated basis from
the date as of which information is given in the Prospectus.
(g) The Company 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, including the Spin-Off Transaction, result in a
violation of, or constitute a default under, the corporate charter,
by-laws or other governing documents of the Company, or any material
agreement, indenture or other instrument to which the Company 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. The consummation of the transactions contemplated hereby,
including the Spin-Off Transaction, have been duly authorized by all
necessary corporate action, and, except for permits and similar
authorizations required under the Securities Act and the securities or
"Blue Sky" laws of certain jurisdictions and for such permits and
authorizations as have been obtained, no consent, approval, authorization
or order of any U.S. 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, including the Spin-Off
Transaction.
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(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) The Company 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 may materially interfere with the business,
properties, financial condition or results of operations of the Company on
a consolidated basis.
(j) Except as described in the Prospectus, there is no litigation or
governmental proceeding to which the Company, Thermo Optek, Thermo
Instrument or Thermo Electron is a party or to which any property of the
Company is subject or which is pending or, to the knowledge of the
Company, Thermo Optek, Thermo Instrument or Thermo Electron, contemplated
against the Company, Thermo Optek or Thermo Instrument that is required to
be disclosed in the Prospectus and that is not so disclosed.
(k) The Company is not in violation of any law, ordinance,
governmental rule or regulation or court decree to which it is subject,
which violation could have a material adverse effect on the condition
(financial or other), results of operations, business or prospects of the
Company and its Subsidiaries on a consolidated basis.
(l) Except as described in the Prospectus, the Company owns or
possesses adequate licenses or other rights to use all intellectual
property rights, including patents and 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 failure,
singularly or in the aggregate would not have a material adverse effect on
the Company and its Subsidiaries on a consolidated basis, and, except as
disclosed in the Prospectus, neither Thermo Electron, Thermo Optek, Thermo
Instrument nor the Company has 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 upon the Company and its
Subsidiaries on a consolidated basis.
(m) Each of the Distribution Agreement and the Tax Matters Agreement
between the Company and Thermo Optek (the "SPIN-OFF AGREEMENTS"), and the
other agreements between the Company and Thermo Optek, Thermo Instrument
or Thermo Electron pursuant to which the Company was initially organized
and capitalized (collectively, the
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"ORGANIZATION AGREEMENTS") (all of the foregoing agreements being referred
to herein as the "INTER-CORPORATE AGREEMENTS") has been duly and validly
authorized, executed and delivered by the Company and is the valid and
binding agreement of the Company enforceable in accordance with its terms,
except as provided by bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, or other similar laws affecting creditors' rights
generally and subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law)
(collectively, "APPLICABLE BANKRUPTCY LAWS"). The execution, delivery and
performance of the Inter-corporate Agreements by the Company, the
consummation of the transactions therein contemplated and compliance with
the terms thereof do not and will not result in a violation of, or
constitute a default under, the corporate charter, by-laws or other
governing documents of the Company, or any agreement, indenture or other
instrument to which the Company is a party or by which it is bound, or to
which any of its properties is subject, and do not and will not 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. No consent, approval, authorization or order of any court,
governmental agency or body or financial institution is required in
connection with the consummation of the transactions contemplated by such
Inter-corporate Agreements.
(n) Neither the Company, Thermo Optek, Thermo Instrument nor Thermo
Electron or any other 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 might reasonably be
expected to constitute, the stabilization or manipulation of the price of
the shares of Common Stock to facilitate the sale or resale of the Shares.
(o) The Shares have been approved for listing on the American Stock
Exchange, subject only to official notice of issuance.
(p) The Form 10 of the Company (the "FORM 10") and any amendments
thereto filed pursuant to the Exchange Act complied as of their respective
dates in all material respects with the Exchange Act and the rules and
regulations thereunder.
1A. REPRESENTATIONS AND WARRANTIES OF THERMO OPTEK, THERMO INSTRUMENT
AND THERMO ELECTRON. Thermo Optek, Thermo Instrument and Thermo Electron each
represent and warrant to, and agree with, each Underwriter that:
(a) Each of Thermo Optek, Thermo Instrument and 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 power and authority (corporate and other) 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,
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except where the failure to so qualify or be in good standing would not
have a material adverse effect on Thermo Electron and its Subsidiaries
taken as a whole.
(b) There has not been any material adverse change in, or any adverse
development which materially affects, the condition (financial or other),
results of operations, business or prospects of Thermo Electron and its
Subsidiaries taken as a whole, from the date as of which information is
given in the most recent quarterly or annual report filed by Thermo
Electron pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), except any as may have been disclosed to the public.
(c) Except as described in their filings with the Commission under the
Exchange Act, neither Thermo Optek, Thermo Instrument nor Thermo Electron
is, nor with the giving of notice or lapse of time or both would be, in
violation of or in default under, nor will the execution or delivery
hereof or consummation of the transactions contemplated hereby, including
the Spin-Off Transaction, result in a violation of, or constitute a
default under, the corporate charter, by-laws or other governing documents
of Thermo Optek, Thermo Instrument or Thermo Electron, or any material
agreement, indenture or other instrument to which Thermo Optek, Thermo
Instrument or Thermo Electron is a party or by which any of them is bound,
or to which any of their properties is subject, nor will the performance
by Thermo Optek, Thermo Instrument or 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 Optek, Thermo Instrument or Thermo Electron or any of their
respective properties, or result in the creation or imposition of any
lien, charge, claim or encumbrance upon any property or asset of Thermo
Optek, Thermo Instrument or Thermo Electron, which would be material to
Thermo Electron and its Subsidiaries taken as a whole. The consummation of
the transactions contemplated hereby, including the Spin-Off Transaction,
have been duly authorized by all necessary corporate action, and except
for permits and similar authorizations required under the Securities Act
and the securities or "Blue Sky" laws of certain jurisdictions and for
such permits and authorizations as have been obtained, no consent,
approval, authorization or order of any court, governmental agency or body
or financial institution is required in connection with the consummation
by Thermo Optek, Thermo Instrument and Thermo Electron of the transactions
contemplated by this Agreement, including the Spin-Off Transaction.
(d) This Agreement has been duly authorized, executed and delivered by
Thermo Optek, Thermo Instrument and Thermo Electron.
(e) Thermo Instrument will own as of the Closing Date (as defined
below), of record and beneficially, the number of shares of Common Stock
of the Company set forth in the Prospectus, free and clear of any liens,
encumbrances, claims or restrictions, except as set forth in the
Prospectus and 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.
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(f) The most recent Annual Report on Form 10-K of each of Thermo
Optek, Thermo Instrument and 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) Each of the Inter-corporate Agreements to which Thermo Optek,
Thermo Instrument or Thermo Electron is a party has been duly and validly
authorized, executed and delivered by Thermo Optek, Thermo Instrument or
Thermo Electron, as the case may be, and is the valid and binding
agreement of Thermo Optek, Thermo Instrument or Thermo Electron, as the
case may be, enforceable in accordance with its terms, except as provided
by applicable bankruptcy laws. The execution, delivery and performance of
each of the Inter-corporate Agreements to which Thermo Optek, Thermo
Instrument or Thermo Electron is a party by such corporation, the
consummation of the transactions therein contemplated and compliance with
the terms thereof do not and will not result in a violation of, or
constitute a default under, the corporate charter, by-laws or other
governing documents of any such corporation, or any agreement, indenture
or other instrument to which any such corporation is a party or by which
it is bound, or to which any of its properties is subject, and do not and
will not violate any existing law, rule, administrative regulation or
decree of any court or any governmental agency or body having jurisdiction
over any such corporation 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 any such corporation which would be material to any
such corporation on a consolidated basis. No consent, approval,
authorization or order of any court, governmental agency or body or
financial institution is required in connection with the consummation by
Thermo Optek, Thermo Instrument or Thermo Electron of the transactions
contemplated by the Inter-corporate Agreements to which it is a party,
except such as have been obtained.
2. PURCHASE OF THE SHARES BY THE UNDERWRITERS. (a) Subject to the
terms and conditions and upon the basis of the representations and warranties
herein set forth, the Company agrees to issue and sell to the Underwriters the
Firm Shares and each of the Underwriters agrees, severally and not jointly, to
purchase at a price of $_____ per Share, the number of Firm Shares set forth
opposite such Underwriter's name in Schedule I hereto. The Underwriters agree to
offer the Firm Shares to the public as set forth in the Prospectus.
(b) Subject to the terms and conditions set forth herein, the Company
hereby grants to the Underwriters an option to purchase from the Company, solely
for the purpose of covering over-allotments in the sale of Firm Shares, all or
any portion of the Option Shares for a period of thirty (30) days from the date
hereof at the purchase price per Share set forth above. Option Shares shall be
purchased from the Company, severally and not jointly, for the accounts of the
several Underwriters in proportion to the number of Firm Shares set forth
opposite such Underwriter's name in Schedule I hereto, except that the
respective purchase obligations of each Underwriter shall be adjusted by the
Representatives so that no Underwriter shall be obligated to purchase Option
Shares other than in 100-share quantities.
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3. DELIVERY OF AND PAYMENT FOR THE SHARES. Delivery of certificates
for the Firm Shares and certificates for the Option Shares, if the option to
purchase the same is exercised on or before the second Business Day (as defined
in Section 13 hereof) prior to the First Closing Date (as defined below), to be
purchased by the Underwriters from the Company and payment therefor shall be
made at the offices of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, 000 Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (or such other place as mutually may be agreed upon), at
10:00 A.M., Eastern time, on the [ ] business day after the date of this
Agreement (the "FIRST CLOSING DATE").
The option to purchase Option Shares from the Company granted in
Section 2 hereof may be exercised during the term thereof by written notice to
the Company from the Representatives. Such notice shall set forth the aggregate
number of Option Shares as to which the option is being exercised and the time
and date, not earlier than either the First Closing Date or the second Business
Day after the date on which the option shall have been exercised nor later than
the third Business Day after the date of such exercise, as determined by the
Representatives, when the Option Shares are to be delivered (the "OPTION CLOSING
DATE"). Delivery and payment for such Option Shares are to be at the offices set
forth above for delivery and payment of the Firm Shares. (The First Closing Date
and the Option Closing Date are herein individually referred to as a "CLOSING
DATE" and collectively referred to as the "CLOSING DATES.")
Delivery of certificates for the Shares shall be made by or on behalf
of the Company to you, for the respective accounts of the Underwriters, against
payment by you, for the several accounts of the Underwriters, of the purchase
price therefor by certified or official bank check payable in New York Clearing
House funds to the order of the Company or by wire transfer to an account
specified by the Company. The certificates for the Shares shall be registered in
such names and denominations as you shall have requested at least two full
Business Days prior to the applicable Closing Date, and shall be made available
for checking and packaging at a location in New York, New York as may be
designated by you at least one full Business Day prior to such Closing Date.
Time shall be of the essence and delivery at the time and place specified in
this Agreement is a further condition to the obligations of each Underwriter.
4. COVENANTS OF THE COMPANY, THERMO OPTEK, THERMO INSTRUMENT AND
THERMO ELECTRON. The Company, Thermo Optek, Thermo Instrument and Thermo
Electron, jointly and severally, covenant and agree with each Underwriter that:
(a) The Company shall comply with the provisions of, and make all
requisite filings with the Commission pursuant to, Rule 430A and
Rule 424(b) of the Rules and Regulations and shall notify you promptly (in
writing, if requested) of all such filings. The Company shall notify you
promptly of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for
additional information; the Company shall prepare and file with the
Commission, promptly upon your request, any amendments or supplements to
the Registration Statement or the Prospectus which, in your opinion, may
be necessary or advisable in connection with the distribution of the
Shares; and the Company shall not file any amendment or supplement to the
Registration Statement or the Prospectus, which filing is not consented to
by you after reasonable notice thereof,
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such consent not to be unreasonably withheld or delayed. The Company shall
advise you promptly of its receipt of notice of the issuance by the
Commission or any state or other regulatory body of any stop order or
other order suspending the effectiveness of the Registration Statement,
suspending or preventing the use of any Preliminary Prospectus or the
Prospectus or suspending the qualification of the Shares for offering or
sale in any jurisdiction, or of the institution of any proceedings for any
such purpose; and the Company shall use its best efforts to prevent the
issuance of any stop order or other such order and, should a stop order or
other such order be issued, to obtain as soon as possible the lifting
thereof.
(b) The Company shall furnish to each of the Representatives and to
counsel for the Underwriters a signed copy of the Registration Statement
as originally filed and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith, and shall furnish to
the Underwriters such number of conformed copies of the Registration
Statement, as originally filed and each amendment thereto (excluding
exhibits other than this Agreement), the Prospectus and all amendments and
supplements to any of such documents in each case as soon as available and
in such quantities as the Representatives may from time to time reasonably
request. 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 Representative and counsel to
the Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(c) Within the time during which a prospectus relating to the Shares
is required to be delivered under the Securities Act, the Company shall
comply with all requirements imposed upon it by the Securities Act, as now
and hereafter amended, and by the Rules and Regulations, as from time to
time in force, so far as is necessary to permit the continuance of sales
of or dealings in the Shares as contemplated by the provisions hereof and
by the Prospectus. If during such period any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such period it
is necessary to amend the Registration Statement or to supplement the
Prospectus in order to comply with the Securities Act or to file any
document, the Company shall promptly notify you and shall amend the
Registration Statement or supplement the Prospectus or file such document
(at the expense of the Company) so as to correct such statement or
omission or to effect such compliance.
(d) The Company shall take or cause to be taken all necessary action
and furnish to whomever you may direct such information as may be required
in qualifying the Shares for sale under the laws of such jurisdictions as
you shall designate, and to continue such qualifications in effect for as
long as may be necessary for the distribution of the Shares; except that
in no event shall the Company be obligated in connection therewith to
qualify as a foreign corporation or to execute a general consent to
service of process.
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(e) The Company shall make generally available to its security holders
(and shall deliver to the Representatives), in the manner contemplated by
Rule 158(b) of the Rules and Regulations or otherwise, as soon as
practicable but in any event not later than 45 days after the end of its
fiscal quarter in which the first anniversary date of the Effective Date
occurs, an earnings statement satisfying the requirements of Section 11(a)
of the Securities Act and covering a period of at least 12 consecutive
months beginning after the Effective Date.
(f) The Company, Thermo Instrument and Thermo Electron shall not,
during the 180-day period following the date of the Prospectus, except
with your prior written consent, offer for sale, sell or otherwise dispose
of, directly or indirectly, any 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, except for
sales of shares of Common Stock by the Company to Thermo Instrument or
Thermo Electron, and except for shares issued as consideration for the
acquisition of one or more businesses provided that such shares may not be
resold or transferred within such 180-day period), or sell or grant
options, rights or warrants with respect to any shares of Common Stock
(other than the grant of options pursuant to existing stock option,
purchase and compensation plans), otherwise than in accordance with this
Agreement or as contemplated in the Prospectus. The Company, Thermo
Instrument and Thermo Electron will not permit any employee stock option,
director stock option or other stock option to purchase Common Stock of
the Company granted by it to be exercised, and the Common Stock issued
upon exercise of the stock option to be sold, prior to the expiration of
the 180-day period following the date of this Prospectus, without your
prior written consent. The Company will not take any action to accelerate
the date on which the restrictions on transfer contained in its corporate
charter relating to the shares of Common Stock to be distributed in the
Spin-Off shall expire without your prior written consent.
(g) The Company shall take such steps as shall be necessary to ensure
that neither the Company nor any Subsidiary shall become an "investment
company" within the meaning of such term under the Investment Company Act
of 1940, as amended, and the rules and regulations thereunder.
(h) Whether or not this Agreement is terminated or the sale of the
Shares to the Underwriters is consummated, the Company shall pay or cause
to be paid (A) all expenses (including stock transfer taxes) incurred in
connection with the delivery to the several Underwriters of the Shares,
(B) all fees and expenses (including, without limitation, fees and
expenses of the Company's accountants and counsel, but excluding fees and
expenses of counsel for the Underwriters) in connection with the
preparation, printing, filing, delivery and shipping of the Registration
Statement (including the financial statements therein and all amendments
and exhibits thereto), each Preliminary Prospectus, the Prospectus and any
amendments or supplements of the foregoing and the printing, delivery and
shipping of this Agreement and other underwriting documents, including,
but not limited to, any Underwriters' Questionnaires, Underwriters' Powers
of Attorney, Blue Sky Memoranda,
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Agreements Among Underwriters and Selected Dealer Agreements, (C) all
filing fees and fees and disbursements of counsel to the Underwriters
incurred in connection with qualification of the Shares under state
securities laws as provided in Section 4(d) hereof, (D) the filing fee of
the National Association of Securities Dealers, Inc., (E) any applicable
listing or other fees, (F) the cost of printing certificates representing
the Shares, (G) the cost and charges of any transfer agent or registrar,
and (H) all other costs and expenses incident to the performance of its
obligations hereunder for which provision is not otherwise made in this
Section. It is understood, however, that, except as provided in this
Section, Section 6 and Section 8 hereof, the Underwriters shall pay all of
their own costs and expenses, including the fees of their counsel, stock
transfer taxes due upon resale of any of the Shares by them and any
advertising expenses incurred in connection with any offers they may make.
If the sale of the Shares provided for herein is not consummated by reason
of any failure, refusal or inability on the part of the Company, Thermo
Optek, Thermo Instrument or Thermo Electron to perform any agreement on
its part to be performed or because any other condition of the
Underwriters' obligations hereunder is not fulfilled or if the
Underwriters shall decline to purchase the Shares for any reason permitted
under this Agreement, the Company shall reimburse the several Underwriters
for all reasonable out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Underwriters in connection with
any investigation or preparation made by them in respect of the marketing
of the Shares or in contemplation of the performance by them of their
obligations hereunder.
(i) The Company shall on or prior to each Closing Date use its best
efforts to cause the Shares to be purchased on such date by the
Underwriters to be approved for listing on the American Stock Exchange,
subject only to official notice of issuance, and shall take such action as
shall be necessary to comply with the rules and regulations of the
American Stock Exchange with respect to such Shares.
(j) During a period of five years from the Effective Date, the Company
shall furnish to the Representatives copies of all reports or other
communications furnished to shareholders and copies of any reports or
financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed. To the extent applicable, such reports or documents
shall be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriters hereunder are subject to the accuracy, as of the date
hereof and each Closing Date (as if made at such Closing Date), of the
representations and warranties of the Company, Thermo Optek, Thermo Instrument
and Thermo Electron contained herein, to the performance by the Company, Thermo
Optek, Thermo Instrument and Thermo Electron of their respective obligations
hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 4(a) hereof, all post-effective
amendments to the Registration
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Statement shall have become effective, all filings required by Rule 430A
and Rule 424 of the Rules and Regulations shall have been made and no such
filings shall have been made without the consent of the Representatives;
no stop order suspending the effectiveness of the Registration Statement
or any amendment or supplement thereto shall have been issued; no
proceedings for the issuance of any such order shall have been initiated
or threatened; and any request of the Commission for additional
information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been disclosed to you and complied
with to your satisfaction.
(b) No Underwriter shall have been advised by the Company, Thermo
Optek, Thermo Instrument or Thermo Electron or shall have discovered and
disclosed to the Company that the Registration Statement, or the
Prospectus or any amendment or supplement thereto, contains an untrue
statement of fact which in your reasonable opinion, or in the reasonable
opinion of counsel for the Underwriters, is material, or omits to state a
fact which, in your reasonable opinion, or in the reasonable opinion of
counsel to the Underwriters, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) On or prior to each Closing Date, you shall have received from
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, counsel for the Underwriters, such
opinion or opinions with respect to corporate proceedings by the Company,
Thermo Optek, Thermo Instrument and Thermo Electron, the form of the
Registration Statement and Prospectus (other than financial statements and
other financial or statistical data), the validity of the Shares, and
other related matters as you may reasonably request and such counsel shall
have received such documents and information as they reasonably request to
enable them to pass upon such matters.
(d) On each Closing Date there shall have been furnished to you the
opinion (addressed to the Underwriters) of Xxxx X. Xxxxxxxxx, Esq.,
General Counsel of Thermo Electron, Thermo Optek, Thermo Instrument and
the Company, dated such Closing Date and in form and substance
satisfactory to counsel for the Underwriters, 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 on the Company and
its Subsidiaries taken as a whole.
(ii) Each of Thermo Electron and its Significant Subsidiaries
(as defined in Section 13) has been duly organized and is validly
existing as a corporation in good
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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 on Thermo Electron
and its Subsidiaries taken as a whole.
(iii) All of the outstanding shares of Common Stock have been and
the Shares, upon issuance and delivery and payment therefor in the
manner herein described, will be, duly authorized, validly issued,
fully paid and nonassessable. 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 Shares 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 the best of such counsel's knowledge, neither the filing of the
Registration Statement nor the offering or sale of the Shares as
contemplated by this Agreement nor the Spin-Off 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, other than as
described in the Prospectus. The Common Stock conforms in all material
respects to the description thereof contained in the Prospectus. All of
the outstanding shares of capital stock of each Significant 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 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 benefit plans maintained primarily for
the benefit of employees, officers, directors and consultants of the
Company and its Subsidiaries).
(iv) Each of the Company and its Significant Subsidiaries is
not, nor with the giving of notice or lapse of time or both would be,
in violation of or in default under, nor will the execution or delivery
hereof or consummation of the transactions contemplated hereby,
including the Spin-Off Transaction, result in a violation of, or
constitute a default under, the corporate charter, by-laws or other
governing documents of the Company or any of its Significant
Subsidiaries or, to the best knowledge of such counsel, any material
agreement, indenture or other instrument to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries may be bound, or to which any of the properties of the
Company or any of its Subsidiaries is subject, nor, to best of such
counsel's knowledge, will the performance by the Company of its
obligations hereunder or the Spin-Off Transaction 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 Subsidiaries or the properties of the Company or any of its
Subsidiaries, or, to the best knowledge of such counsel, result in the
creation or imposition of any lien, charge, claim or encumbrance upon
the properties or assets of the Company or any of its Subsidiaries
which would be material to the Company and its
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Subsidiaries taken as a whole. The consummation of the transactions
contemplated hereby, including the Spin-Off Transaction, have been duly
authorized by all necessary corporate action on the part of the
Company, Thermo Optek, Thermo Instrument and Thermo Electron, and,
except for permits and similar authorizations required under the
Securities Act and the securities or "Blue Sky" laws of certain
jurisdictions or the National Association of Securities Dealers, Inc.
and for such permits and authorizations as have been obtained, no
consent, approval, authorization or order of any court, governmental
agency or body or financial institution is required in connection with
the consummation by the Company, Thermo Optek, Thermo Instrument or
Thermo Electron of the transactions contemplated by this Agreement,
including the Spin-Off Transaction.
(v) Each of Thermo Optek, Thermo Instrument and Thermo Electron
is not, nor with the giving of notice or lapse of time or both would
be, in violation of or in default under, nor will the execution or
delivery hereof or consummation of the transactions contemplated
hereby, including the Spin-Off Transaction, result in a violation of,
or constitute a default under, the corporate charter, by-laws or other
governing documents of Thermo Optek, Thermo Instrument or Thermo
Electron or, except as described in the Exchange Act filings of Thermo
Optek, Thermo Instrument and Thermo Electron, to the best knowledge of
such counsel, any material agreement, indenture, or other instrument to
which Thermo Optek, Thermo Instrument or Thermo Electron is a party or
by which Thermo Optek, Thermo Instrument or Thermo Electron may be
bound, or to which any of the properties of Thermo Optek, Thermo
Instrument or Thermo Electron is subject, nor will the performance by
Thermo Optek, Thermo Instrument or 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 Optek, Thermo Instrument or Thermo Electron or
the properties of Thermo Optek, Thermo Instrument or Thermo Electron,
or, to the best knowledge of such counsel, result in the creation or
imposition of any lien, charge, claim or encumbrance upon the
properties or assets of Thermo Optek, Thermo Instrument or Thermo
Electron, which would be material to any of such corporations on a
consolidated basis.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company, Thermo Optek, Thermo Instrument and Thermo
Electron.
(vii) Each of the Inter-corporate Agreements has been duly
authorized, executed and delivered by the Company, Thermo Optek, Thermo
Instrument and Thermo Electron, as the case may be, and is the valid
and binding agreement of the Company, Thermo Optek, Thermo Instrument
and Thermo Electron enforceable in accordance with its terms except as
provided by applicable bankruptcy laws. The execution, delivery and
performance of each of the Inter-corporate Agreements by each of the
parties thereto, the consummation of the transactions therein
contemplated and compliance with the terms thereof do not and will not
result in a violation of, or constitute a default under the corporate
charter, by-laws or other governing documents of the Company, Thermo
Optek, Thermo Instrument or Thermo Electron, or any material agreement,
indenture or other
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instrument known to such counsel to which the Company, Thermo Optek,
Thermo Instrument or Thermo Electron is a party or by which any of them
is bound, or to which any of their properties is subject and do not and
will not violate any existing law, rule, administrative regulation or
decree of any court or any governmental agency or body having
jurisdiction over the Company, Thermo Optek, Thermo Instrument or
Thermo Electron or any of their properties, or, to the best of such
counsel's knowledge, result in the creation or imposition of any lien,
charge, claim or encumbrance upon any property or asset of the Company,
Thermo Optek, Thermo Instrument or Thermo Electron, which would be
material to any of such corporations on a consolidated basis. Except
for permits and similar authorizations required under the Securities
Act and the securities or "Blue Sky" laws of certain jurisdictions or
by the National Association of Securities Dealers, Inc. and for such
permits and authorizations as have been obtained, no consent, approval,
authorization or order of any court, governmental agency or body or, to
the knowledge of such counsel, financial institution is required in
connection with the consummation of the transactions contemplated by
the Inter-corporate Agreements.
(viii) The Registration Statement and all post-effective
amendments thereto have become effective under the Securities Act and,
to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending before
or contemplated by the Commission. All filings required by Rule 424 and
Rule 430A of the Rules and Regulations have been made; the Registration
Statement as of the Effective Date, and the Prospectus and any
amendment or supplement thereto as of their respective dates, complied
as to form in all material respects with the requirements of the
Securities Act and the Rules and Regulations (it being understood that
such counsel need express no opinion on the financial statements or
other financial and statistical data included therein). Such counsel
has no reason to believe that (i) the Registration Statement, as of its
Effective Date, or any amendment thereto, at the time it became
effective contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or (ii) the
Prospectus or any supplement or amendment thereto, or any supplement or
amendment thereto, on such Closing Date or at the time such Prospectus
or supplement or amendment thereto was issued contains or contained any
untrue statement of a material fact or omits or omitted to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading (it being understood that such counsel
need express no opinion with respect to the financial statements or
other financial and statistical data included in the Registration
Statement and the Prospectus).
(ix) To the best knowledge of such counsel, all descriptions in
the Prospectus of statutes, regulations, legal or governmental
proceedings, contracts and other documents are accurate in all material
respects, and fairly present in all material respects the information
required to be shown and such counsel does not know of any contracts or
documents of a character required to be summarized or described therein
or to be filed as exhibits thereto that are not so summarized,
described or filed, nor does such counsel
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know of any pending or threatened litigation or any governmental
proceeding, statute or regulation required to be described in the
Prospectus that is not so described.
In rendering the foregoing opinion, counsel may rely, as to matters of
fact, upon certificates of officers of the Company, Thermo Optek, Thermo
Instrument and Thermo Electron and certificates of public officials.
Certificates so relied upon shall be furnished to you and shall be
satisfactory to you and your counsel.
(e) There shall have been furnished to you a certificate, dated such
Closing Date and addressed to you, signed by the President or a Vice
President and by the Treasurer or Secretary of the Company to the effect
that: (i) the representations and warranties of the Company contained in
this Agreement are true and correct, as if made at and as of such Closing
Date, 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
such Closing Date; (ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been initiated or, to the knowledge of the signers of such
certificate, threatened; (iii) all filings required by Rule 424 and
Rule 430A of the Rules and Regulations have been made; (iv) the signers of
said certificate have carefully examined the Registration Statement and
the Prospectus, and any amendments or supplements thereto and such
documents contain all statements and information required to be included
therein, and do not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading; and (v) since the effective
date of the Registration Statement, there has occurred no event required
to be set forth in an amendment or supplement to the Registration
Statement or the Prospectus which has not been so set forth.
(f) There shall have been furnished to you certificates, dated such
Closing Date and addressed to you, signed by the President or a Vice
President and by the Treasurer or Secretary of each of Thermo Optek,
Thermo Instrument and Thermo Electron to the effect that: (i) the
representations and warranties of Thermo Optek, Thermo Instrument and
Thermo Electron (as applicable) contained in this Agreement are true and
correct, as if made at and as of such Closing Date, and Thermo Optek,
Thermo Instrument and Thermo Electron (as applicable) has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date; (ii) the signers
of said certificate have carefully examined the Registration Statement and
the Prospectus, and any amendments or supplements thereto, and such
documents contain all statements and information required to be included
therein and do not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; and (iii) since the effective
date of the Registration Statement, there has occurred no event required
to be set forth in an amendment or supplement to the Registration
Statement or the Prospectus which has not been so set forth.
(g) Since the Effective Time, neither the Company nor any of the
Subsidiaries of the Company shall have sustained any loss by fire, flood,
accident or other calamity, or shall
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have become a party to or the subject of any litigation, which is material
to the Company and its Subsidiaries taken as a whole, nor shall there have
been a material adverse change in the general affairs, operations,
business, prospects, key personnel, capitalization, financial condition or
net worth of the Company and its Subsidiaries taken as a whole, whether or
not arising in the ordinary course of business, which loss, litigation or
change, in your judgment, shall render it inadvisable to proceed with the
payment for and delivery of the Shares.
(h) On the date of this Agreement and on each Closing Date you shall
have received a letter from each accounting firm whose report appears in
the Prospectus, dated the date of this Underwriting Agreement or such
Closing Date, as the case may be, and addressed to you, confirming that
they are independent certified public accountants within the meaning of
the Securities Act and the applicable published Rules and Regulations, 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 a Closing Date confirming the conclusions and
findings set forth in such prior letter.
(i) You shall have been furnished with such additional documents and
certificates as you or counsel for the Underwriters may reasonably
request.
(j) The Shares to be purchased on such Closing Date by the
Underwriters shall be approved for listing on the American Stock Exchange,
subject only to official notice of issuance.
(k) The Spin-Off shall have been completed substantially as described
in the Form 10.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and to counsel for the Underwriters. The Company,
Thermo Optek, Thermo Instrument and Thermo Electron shall furnish to you such
conformed copies of such opinions, certificates, letters and other documents as
you shall reasonably request. If any of the conditions specified in this Section
5 shall not have been fulfilled when and as required by this Agreement, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, such Closing Date, by you. Any such cancellation shall
be without liability of the Underwriters to the Company, Thermo Optek, Thermo
Instrument or Thermo Electron. Notice of such cancellation shall be given to the
Company in writing, or by telegraph or telephone and confirmed in writing.
6. INDEMNIFICATION AND CONTRIBUTION.
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(a) The Company, Thermo Optek, Thermo Instrument and Thermo Electron,
jointly and severally, shall indemnify and hold harmless each Underwriter
against any loss, claim, damage or liability (or any action in respect
thereof), joint or several, to which such Underwriter may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage
or liability (or action in respect thereof) arises out of or is based upon
(i) any untrue statement or alleged untrue statement made by the Company,
Thermo Optek, Thermo Instrument or Thermo Electron in Section 1 hereof or
by Thermo Optek, Thermo Instrument or Thermo Electron in Section 1A
hereof, or (ii) any untrue statement or alleged untrue statement of a
material fact contained (A) in the Registration Statement, any Preliminary
Prospectus, the Prospectus, the Form 10, or any amendment or supplement to
any thereof, or (B) in any "Blue Sky" application or other document
executed by the Company specifically for that purpose or based upon any
written information furnished by the Company filed in any state or other
jurisdiction in order to qualify any or all of the Shares under the
securities laws thereof (any such application, document or information
being hereinafter called "BLUE SKY INFORMATION"), or (iii) the omission or
alleged omission to state in the Registration Statement, any Preliminary
Prospectus, the Prospectus, the Form 10, or any amendment or supplement to
any thereof, or in any Blue Sky Information a material fact required to be
stated therein or necessary to make the statements therein not misleading
or (iv) 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
Shares or the offering contemplated hereby or the Spin-Off, 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 (ii) or
(iii) above (provided that the Company, Thermo Optek, Thermo Instrument
and Thermo Electron shall not be liable under this clause (iv) 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,
willful misconduct or breach of this Agreement); and shall reimburse each
Underwriter promptly after receipt of invoices from such Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage,
liability or action, notwithstanding the possibility that payments for
such expenses might later be held to be improper, in which case the person
receiving them shall promptly refund them; provided, however, that the
Company, Thermo Optek, Thermo Instrument and Thermo Electron shall not be
liable in any such case to the extent, but only to the extent, that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with written information
furnished to the Company through you by or on behalf of any Underwriter
specifically for use in the preparation of the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement to
any thereof, or any Blue Sky Information; and provided, further, that as
to any Preliminary Prospectus this indemnity agreement shall not inure to
the benefit of any Underwriter on account of any loss, claim, damage,
liability or action arising from the sale of Shares to any person by that
Underwriter if that Underwriter failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Securities
20
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Act and the Rules and Regulations, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure resulted from non-compliance by the
Company with Section 4(b).
(b) Each Underwriter severally, but not jointly, shall indemnify and
hold harmless the Company, Thermo Optek, Thermo Instrument and Thermo
Electron against any loss, claim, damage or liability (or action in
respect thereof) to which the Company, Thermo Optek, Thermo Instrument or
Thermo Electron may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage or liability (or action in respect
thereof) arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement to any thereof, or (B) in any Blue Sky
Information, or (ii) the omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement to any thereof, or in any Blue Sky Information a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and shall reimburse any legal or other
expenses reasonably incurred by the Company, Thermo Optek, Thermo
Instrument or Thermo Electron promptly after receipt of invoices from the
Company, Thermo Optek, Thermo Instrument or Thermo Electron in connection
with investigating or defending against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or
action, notwithstanding the possibility that payments for such expenses
might later be held to be improper, in which case the Company, Thermo
Optek, Thermo Instrument and Thermo Electron shall promptly refund them;
provided, however, that such indemnification shall be available in each
such case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished
to the Company through you by or on behalf of such Underwriter
specifically for use in the preparation thereof.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 6 except to the extent it has been prejudiced in any material
respect by such failure or from any liability which it may have to an
indemnified party otherwise than under this Section 6. If any such claim
or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it or they wish,
jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified
party under such subsection for any legal or other expenses subsequently
incurred by the indemnified
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party in connection with the defense thereof other than reasonable costs
of investigation, except that the Representatives shall have the right to
employ counsel to represent you and those other Underwriters who may be
subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company, Thermo
Optek, Thermo Instrument or Thermo Electron under such subsection if, in
your reasonable judgment, it is advisable for you and those Underwriters
to be represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the indemnifying party
or parties; provided, however, in no event, shall the indemnifying party
or parties be responsible for the expenses of more than one separate
counsel for all such indemnified parties.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, Thermo Optek, Thermo Instrument and
Thermo Electron on the one hand and the Underwriters on the other from the
offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company, Thermo Optek,
Thermo Instrument and Thermo Electron on the one hand and the Underwriters
on the other in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, Thermo Optek, Thermo Instrument and Thermo Electron on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus.
Relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by one of the parties and such parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company, Thermo Optek,
Thermo Instrument, Thermo Electron and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
subsection (d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to in the first sentence of this subsection (d).
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending against any action or claim which is the
subject of this subsection (d), subject to the proviso in the last
sentence of subsection (c). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the
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public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations and not
joint. Each party entitled to contribution agrees that upon the service of
a summons or other initial legal process upon it in any action instituted
against it in respect of which contribution may be sought, it shall
promptly give written notice of such service to the party or parties from
whom contribution may be sought, but the omission so to notify such party
or parties of any such service shall not relieve the party from whom
contribution may be sought from any obligation it may have hereunder or
otherwise (except as specifically provided in subsection (c) hereof).
(e) The obligations of the Company, Thermo Optek, Thermo Instrument
and Thermo Electron under this Section 6 shall be in addition to any
liability which the Company, Thermo Optek, Thermo Instrument and Thermo
Electron may otherwise have, and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within
the meaning of the Securities Act or the Exchange Act; and the obligations
of the Underwriters under this Section 6 shall be in addition to any
liability that the respective Underwriters may otherwise have, and shall
extend, upon the same terms and conditions, to each director of the
Company (including any person who, with his consent, is named in the
Registration Statement as about to become a director of the Company), to
each officer of the Company who has signed the Registration Statement and
to Thermo Optek, Thermo Instrument and Thermo Electron, and each other
person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act.
7. SUBSTITUTION OF UNDERWRITERS. If any Underwriter defaults in its
obligation to purchase the number of Shares which it has agreed to purchase
under this Agreement, the non-defaulting Underwriters shall be obligated to
purchase (in the respective proportions which the number of Shares set forth
opposite the name of each non-defaulting Underwriter in Schedule I hereto bears
to the total number of Shares set forth in Schedule I hereto) the Shares which
the defaulting Underwriter agreed but failed to purchase; except that the
non-defaulting Underwriters shall not be obligated to purchase any of the Shares
if the total number of Shares which the defaulting Underwriter or Underwriters
agreed but failed to purchase exceed 9.09% of the total number of Shares, and
any non-defaulting Underwriters shall not be obligated to purchase more than
110% of the number of Shares set forth opposite its name in Schedule I hereto
plus the total number of Option Shares purchasable by it pursuant to the terms
of Section 2. If the foregoing maximums are exceeded, the non-defaulting
Underwriters, and any other underwriters satisfactory to you that so agree,
shall have the right, but shall not be obligated, to purchase (in such
proportions as may be agreed upon among them) all of the Shares. If the
foregoing maximums are exceeded and the non-defaulting Underwriters or the other
underwriters satisfactory to you do not elect to purchase the Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase, the
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter, the Company, Thermo Optek, Thermo Instrument or
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Thermo Electron except for the payment of expenses to be borne by the Company,
Thermo Optek, Thermo Instrument and Thermo Electron and the Underwriters as
provided in Section 4(h) hereof and the indemnity and contribution agreements of
the Company, Thermo Optek, Thermo Instrument, Thermo Electron and the
Underwriters contained in Section 6 hereof.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have for damages caused by its default. If the other
underwriters satisfactory to you are obligated or agree to purchase the Shares
of a defaulting Underwriter, either you or the Company may postpone the First
Closing Date for up to seven full Business Days in order to effect any changes
that may be necessary in the Registration Statement or the Prospectus or in any
other document or agreement, and to file promptly any amendments or any
supplements to the Registration Statement or the Prospectus which in your
opinion may thereby be made necessary.
8. TERMINATION.
(a) Until the First Closing Date, this Agreement may be terminated by
you by giving notice as hereinafter provided to the Company, if (i) the
Company, Thermo Optek, Thermo Instrument or Thermo Electron shall have
failed, refused or been unable, at or prior to the First Closing Date, to
perform any agreement on its part to be performed hereunder, (ii) any
other condition of the obligations of the Underwriters hereunder is not
fulfilled, (iii) trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or the over-the-counter market
shall have been suspended or minimum prices shall have been established on
any of such exchanges or such market by the Commission or by such exchange
or other regulatory body or governmental authority having jurisdiction,
(iv) a banking moratorium shall have been declared by Federal, New York or
Massachusetts authorities, or (v) the United States is or becomes engaged
in hostilities which result in the declaration of a national emergency or
war, or (vi) there shall have been such a material adverse change in
general economic, political or financial conditions, or the effect of
international conditions on the financial markets in the United States
shall be such, as to, in the judgment of a majority in interest of the
several Underwriters, make it inadvisable or impracticable to proceed with
the delivery of the Shares. Any termination of this Agreement pursuant to
this Section 8 shall be without liability on the part of the Company,
Thermo Optek, Thermo Instrument, Thermo Electron or any Underwriter,
except as otherwise provided in Sections 4(h) and 6 hereof.
Any notice referred to above may be given at the address specified in
Section 10 hereof in writing or by telegraph or telephone, and if by telegraph
or telephone, shall be immediately confirmed in writing.
9. SURVIVAL OF INDEMNITIES, CONTRIBUTION, WARRANTIES AND
REPRESENTATIONS. The agreements contained in Section 6 and the representations,
warranties and agreements of the Company, Thermo Optek, Thermo Instrument and
Thermo Electron in Sections 1, 1A and 4 shall survive the delivery of the Shares
to the Underwriters hereunder and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
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10. NOTICES. Except as otherwise provided in this Agreement, (a)
whenever notice is required by the provisions of this Agreement to be given to
the Company, Thermo Optek, Thermo Instrument or Thermo Electron, such notice
shall be in writing addressed to the Company, Thermo Optek, Thermo Instrument or
Thermo Electron at 00 Xxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxxxxx
00000-0000; and (b) whenever notice is required by the provisions of the
Agreement to be given to the several Underwriters, such notice shall be in
writing addressed to you in care of Xxxxxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department.
11. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set
forth in the last paragraph on the outside cover page, the paragraph containing
stabilization information on the inside front cover page and the statements
under the caption "Underwriting" in any Preliminary Prospectus and in the
Prospectus, constitute the only written information furnished by or on behalf of
any Underwriter referred to in paragraph (b) of Section 1 hereof and in
paragraphs (a) and (b) of Section 6 hereof.
12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters, the Company, Thermo Optek, Thermo
Instrument and Thermo Electron, and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that (a) the representations, warranties, indemnities and
agreements of the Company, Thermo Optek, Thermo Instrument and Thermo Electron
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the meaning of the
Securities Act or the Exchange Act and (b) the indemnity agreement of the
Underwriters contained in Section 6 hereof shall be deemed to be for the benefit
of directors of the Company, officers of the Company who signed the Registration
Statement, and any person controlling the Company, including Thermo Optek,
Thermo Instrument and Thermo Electron. Nothing in this Agreement shall be
construed to give any person, other than the persons referred to in this
paragraph, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
13. DEFINITION OF "BUSINESS DAY", "SUBSIDIARY" AND "SIGNIFICANT
SUBSIDIARY". For purposes of this Agreement, (a) "BUSINESS DAY" means any day on
which the American Stock Exchange is open for trading, (b) "SUBSIDIARY" has the
meaning set forth in Rule 405 of the Rules and Regulations and (c) "SIGNIFICANT
SUBSIDIARY" has the meaning set forth in Item 1-02(v) of the Regulation S-X of
the Rules and Regulations.
14. PERFORMANCE BY THE COMPANY. Thermo Optek, Thermo Instrument and
Thermo Electron agree to cause the Company to perform each of the agreements and
obligations of the Company contained in this Agreement.
15. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect to
the choice of law or conflict of law principles thereof.
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16. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which together shall constitute one and the same
Agreement.
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Please confirm, by signing and returning to us eight counterparts of
this Agreement, that you are acting on behalf of yourselves and the other
several Underwriters and that the foregoing correctly sets forth the agreement
among the Company, Thermo Optek, Thermo Instrument, Thermo Electron and the
several Underwriters.
Very truly yours,
THERMO VISION CORPORATION
By:___________________________
Title:
THERMO OPTEK INC.
By:___________________________
Title:
THERMO INSTRUMENT SYSTEMS INC.
By:___________________________
Title:
THERMO ELECTRON CORPORATION
By:___________________________
Title:
Confirmed and accepted as of the
date first above mentioned:
XXXXXXXXXX & CO. INC.
HSBC SECURITIES, INC.
as Representatives of the several
Underwriters named in Schedule I hereto
By: XXXXXXXXXX & CO. INC.
By:_____________________________
Authorized Signatory
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SCHEDULE I
Number of Firm
Shares To Be
Underwriter Purchased
----------- --------------
Xxxxxxxxxx & Co. Inc...........................
HSBC Securities, Inc...........................
Total................................. 1,075,000
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