SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __) *
Total Containment, Inc.
(Name of Issuer)
Common Stock ($0.01 Per Share)
(Title of Class of Securities)
89149T 10 1
(CUSIP Number)
Patrick W. Allender George P. Stamas, Esquire
Danaher Corporation Piper & Marbury L.L.P.
1250 24th Street, N.W. 1200 Nineteenth Street, N.W.
Suite 800 Washington, D.C. 20036-2430
Washington, D.C. 20037 (202) 861-3900
(202) 828-0850
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
May 7, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject
of this Schedule 13D, and is filing this schedule because of
Rule 13d-1(b)(3) or (4), check the following box: ___
Check the following box if a fee is being paid with this
statement: x
* The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent
amendment containing information which would alter disclosures
provided in a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 (the "Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
CUSIP No. 89149T 10 1
1. NAME OF REPORTING PERSON: Danaher Corporation
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 59-
1995548
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b)
3. SEC USE ONLY
4. SOURCE OF FUNDS* WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES 7. SOLE VOTING POWER None
BENEFICIALLY OWNED 8. SHARED VOTING POWER 2,601,000**
BY EACH REPORTING 9. SOLE DISPOSITIVE POWER None
PERSON WITH 10. SHARED DISPOSITIVE POWER 2,601,000**
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
2,601,000**
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW
(11)
56.0% (calculated by dividing (i) the 2,601,000 shares
beneficially owned by the Reporting Person by (ii) the
4,641,600 shares of Common Stock outstanding).
14. TYPE OF REPORTING PERSON* CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
**Voting power and dispositive power is shared based upon Danaher
Corporation's right to acquire such Shares pursuant to the Stock
Purchase Agreement described in Item 4 solely with respect to the
matters disclosed in such Item.
Item 1. Security and Issuer
This statement on Schedule 13D (this "Statement") relates to
the Common Stock, par value $0.01 per share (the "Common Stock"),
of Total Containment, Inc., a Delaware corporation (the
"Issuer"). The principal executive offices of the Issuer are
located at 422 Business Center, A130 North Drive, P.O. Box 939,
Oaks, Pennsylvania 19456.
Item 2. Identity and Background
The name of the person filing this Statement is Danaher
Corporation, a Delaware corporation ("Danaher"). Danaher has its
principal executive offices at 1250 24th Street, N.W., Suite 800,
Washington, D.C. 20037. Danaher's principal business is the
design, manufacture and marketing of industrial and consumer
products.
Set forth in Schedule A, which is attached hereto and
incorporated herein by reference, are the (i) names and (ii)
present principal occupations of the executive officers and
directors of Danaher and each person who controls Danaher. Each
of such persons is a citizen of the United States of America and
has a business address at the address of Danaher.
During the past five years, neither Danaher nor, to the best
knowledge of Danaher, any of its executive officers, directors or
controlling persons has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors).
During the past five years, neither Danaher nor, to the best
knowledge of Danaher, any of its executive officers, directors or
controlling persons has been a party to any civil proceeding of a
judicial or administrative body of competent jurisdiction where
the result of such proceeding was the imposition of a judgment,
decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such
laws.
Item 3. Source and Amount of Funds or Other Consideration
Danaher intends to acquire the securities of the Issuer from
Danaher's available working capital credit lines. No new borrowings
will be made for the purpose of acquiring the securities.
Item 4. Purpose of Transaction
On May 7, 1995, Danaher entered into a Stock Purchase
Agreement (the "Purchase Agreement") with Group Treco, Ltee
("Treco"), Marc Guindon and Marcel Dutil pursuant to which
Danaher agreed, subject to the terms and conditions set forth in
the Purchase Agreement, to purchase 2,601,000 shares of Common
Stock of the Issuer from Treco. A copy of the Purchase Agreement
is attached as Exhibit 1 hereto and is incorporated herein by
reference.
Danaher presently intends, subject to fulfillment of the
conditions to the closing set forth in the Purchase Agreement, to
purchase the shares of Common Stock of the Issuer from Treco five
days after the date (the "HSR Expiration Date") of the expiration
or early termination of the waiting period under the Hart Scott
Rodino Antitrust Improvements Act of 1976, as amended. The HSR
Expiration Date is anticipated to occur on or before June 12,
1995.
On May 15, 1995, pursuant to the Purchase Agreement, Danaher
proposed a transaction to the Issuer's Board of Directors in
which Danaher would acquire the remaining publicly-held shares of
Common Stock of the Issuer at a price of $10.50 per share. This
proposal was set forth in a letter dated May 15, 1995 from
Danaher to the Board of Directors of the Issuer. A copy of the
Danaher proposal is attached as Exhibit 2 and is incorporated
herein by reference.
Item 5. Interest in Securities of Issuer
On May 7, 1995, Danaher entered into the Purchase Agreement
under which it agreed to purchase from Treco, under the terms and
conditions set forth therein, 2,601,000 shares of Common Stock of
the Issuer at a price of $10.50 per share. The shares that
Danaher has the right to acquire pursuant to the Purchase
Agreement represent 56.0% of the total number of shares
outstanding at May 7, 1995. The Purchase Agreement is attached
hereto as Exhibit 2. Except as set forth in this Item 5, neither
Danaher, nor to the best of Danaher's knowledge, any persons
named in Schedule A beneficially owns any shares of Common Stock
of the Issuer.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer
Other than the Purchase Agreement described in Item 4
hereof, there are presently no contracts, arrangements,
understandings or relationships (legal or otherwise) among the
persons named in Item 2, or between such persons and any other
person, with respect to any securities of the Issuer, including,
but not limited to, transfer or voting of any securities,
finder's fees, joint ventures, loan or option arrangements, puts
or calls, guarantees of profits, division of profits or loss, or
the giving or withholding of proxies.
Item 7. Material to be filed as Exhibits
The Index of Exhibits attached to this Statement is
incorporated herein by reference in its entirety.
Exhibit 1: Stock Purchase Agreement dated May 7, 1995 among
Danaher, Group Treco, Ltee, Mark Guindon and Marcel
Dutil
Exhibit 2: Danaher Corporation letter dated May 15, 1995
containing proposal to acquire shares of the
Issuer not held by Treco.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
Statement is true, complete and correct.
Dated: May 17, 1995
DANAHER CORPORATION
/s/ Patrick W.
Allender___________________
By: Patrick W. Allender
Title: Chief Financial Officer
INDEX OF EXHIBITS
Number Description Page
Exhibit 1 Stock Purchase Agreement dated 9
May 7, 1995 among Danaher,
Group Treco, Ltee, Marc
Guindon
and Marcel Dutil
Exhibit 2 Danaher Corporation letter dated May
15, 24
1995 containing proposal to
acquire
shares of the Issuer not
held by Treco.
SCHEDULE A
NAME and PRINCIPAL OCCUPATION
Mortimer M. Caplin
Caplin & Drysdale
One Thomas Circle, N.W., Suite 1100
Washington, DC 20005
Senior Member of Caplin & Drysdale, a law firm in
Washington, D.C. for over five years; Director of
Fairchild Industries, Inc., Fairchild Corporation,
Presidential Realty Corporation, and Unigene
Laboratories, Inc.
Donald J. Ehrlich
Wabash National Corporation
1000 Sagamore Parkway South
Lafayette, IN 47905
President, Chief Executive Officer and Director of
Wabash National Corporation, a manufacturer of truck
trailers and bimodal vehicles, for five years; Director
of Indiana Secondary Market Corporation and NBD Bank,
N.A., Northwest.
Walter G. Lohr, Jr.
Hogan & Hartson
111 S. Calvert Street, Ste. 1600
Baltimore, MD 21202-6191
Partner of Hogan and Hartson, a law firm in Baltimore,
Maryland, since 1992; attorney in private practice 1987-
1992.
Steven M. Rales Chairman of the Board of Danaher since
1984; Chief Executive Officer of Danaher until February
1990; and General Partner of Equity Group Holdings, a
partnership located in Washington, DC with interests in
publicly traded securities, manufacturing companies and
media operations since 1979.
Mitchell P. Rales President of Danaher from 1987 to
February 1990; Executive Vice President of Danaher from
January 1984 to March 1987; and General Partner of Equity
Group Holdings, a general partnership located in
Washington, DC with interests in publicly traded
securities, manufacturing companies and media operations,
since 1979.
George M. Sherman President and Chief Executive Officer
of the Company since February 1990; Executive Vice
President and President of the Power Tools and Home
Improvement Group of The Black & Decker Corporation from
1985 to 1990.
A. Emmet Stephenson
Stephenson & Company
100 Garfield Street
Denver, CO 80206
President of Stephenson and Co., a private investment
management firm in Denver, Colorado for more than five
years; Senior Partner of Stephenson Merchant Banking for
more than five years.
Patrick W. Allender Senior Vice President, Chief
Financial Officer and Secretary of Danaher
James H. Ditkoff Vice President-Finance/Tax of Danaher
C. Scott Brannan, Vice President Administration and
Controller of Danaher
John P. Watson Vice President and Group Executive of
Danaher
Dennis D. Claramunt, Vice President and Group Executive
of Danaher
EXHIBIT 1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") dated as
of May 7, 1995, by and between DANAHER CORPORATION, a
Delaware corporation (the "Purchaser"), GROUP TRECO,
LTEE, a corporation organized under the laws of the
Province of Quebec ("Treco"), MARC GUINDON and MARCEL
DUTIL (the "Principals", and with Treco, collectively,
the "Sellers").
W I T N E S S E T H:
WHEREAS, Treco owns good and marketable title to Two
Million Six Hundred One Thousand (2,601,000) shares (the
"Shares") of Common Stock, par value $.01 per share (the
"Common Stock") of Total Containment, Inc., a Delaware
corporation (the "Company");
WHEREAS, the Principals own all of the stock of
Treco and will directly benefit from the transactions
contemplated hereby;
WHEREAS, the Sellers desire to assure to the other
holders of shares of Common Stock of the Company an
opportunity to sell their shares on terms and conditions
no less favorable than the terms and conditions upon
which the Purchaser will purchase the Shares hereunder;
WHEREAS, the Purchaser desires to purchase the
Shares from Treco and Treco desires to sell the Shares to
the Purchaser.
NOW THEREFORE, in consideration of the premises and
respective agreements set forth herein, and in reliance
upon the respective representations and warranties made
hereunder, the parties hereto agree as follows:
1. SALE AND PURCHASE OF COMMON STOCK
1.1. Agreement to Sell. Upon the terms and
conditions hereinafter set forth, Treco agrees and the
Principals agree to cause Treco to sell, assign, transfer
and deliver to the Purchaser at the Closing on the
Closing Date (as defined in Section 1.3), and the
Purchaser hereby agrees to purchase and accept from Treco
at the Closing on the Closing Date, the Shares. The
Shares shall be conveyed free and clear of all liens,
claims, charges, pledges, security interests, pre-emptive
rights, rights of first refusal, encumbrances and
restrictions, other than restrictions, if any, on resale
under federal and state securities laws (collectively,
"Liens").
1.2. Purchase Price. In reliance on the
representations, warranties and covenants set forth
herein and in consideration of Treco's sale, assignment,
transfer and delivery of the Shares to the Purchaser, the
Purchaser shall pay to Treco aggregate cash consideration
(the "Purchase Price") in the amount equivalent to $10.50
per Share (the "Per Share Price"), or Twenty Seven
Million Three Hundred Ten Thousand Five Hundred Dollars
($27,310,500.00). The Purchase Price shall be payable by
the Purchaser to Treco in immediately available funds by
delivery on the Closing Date of a wire transfer of U.S.
currency to an account designated in writing by Treco.
If the Purchaser agrees, pursuant to a Cash Merger
Agreement (as defined in Section 6.5) to purchase shares
of Common Stock of the Company from holders other than
Treco at a price per share that is greater than the Per
Share Price, the Purchaser agrees to increase the
Purchase Price to an amount per Share equal to the higher
price paid for the shares of Common Stock pursuant to the
Cash Merger Agreement or in any other transaction made
available to all or substantially all of the minority
shareholders of the Company.
1.3. Closing. Subject to the terms and
conditions of this Agreement, the sale and purchase of
the Common Stock contemplated hereby (the "Closing")
shall take place at 10:00 a.m., local time, on either (i)
the date that is not later than July 6, 1995 if the
Company Action (as defined in Section 6.5) occurs on or
before May 19 and the date (the "Expiration Date") of the
expiration or termination of the waiting period under the
Hart Scott Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act") occurs on or before June 30,
1995, or (ii) one additional business day after July 6
for each additional business day after May 19 on which
the Company Action occurs, assuming the Expiration Date
has occurred (the "Closing Date"), provided, however,
that, the Closing Date shall not be later than 48 days
after the later of (a) the Company Action or (b) the
Expiration Date. Notwithstanding the foregoing, the
Purchaser shall have the right, upon five (5) business
days notice to Seller following the Expiration Date to
close on the purchase of the Shares. The Closing shall
take place at the offices of Piper & Marbury L.L.P.,
Philadelphia, Pennsylvania, on the Closing Date or at
such other time, date or place as the Purchaser and Treco
may mutually agree upon in writing; provided, however,
that prior to the Closing, all of the conditions in
Sections 6 and 7 of this Agreement shall have been
satisfied or waived, as the case may be.
1.4. Seller's Obligations at Closing. At the
Closing, the Sellers will deliver to the Purchaser the
following (collectively, the "Sellers' Closing
Documents"):
(i) all original stock certificates
evidencing the Shares held by Treco, duly executed in
blank or accompanied by stock powers, duly executed in
blank together with signature guarantees for Treco;
(ii) a duly-executed Closing Certificate
(as defined in Section 6.1 hereof), dated as of the
Closing Date, with respect to the matters set forth in
Section 6.1 hereof;
(iii) an opinion of the Sellers'
counsel in form and substance customary in transactions
of the sort contemplated by this Agreement; and
(iv) such other documents and instruments
as may be required to consummate the transactions
contemplated hereunder.
1.5. Purchaser's Obligations at Closing. At
the Closing, the Purchaser will deliver to the Sellers
cash representing payment of the Purchase Price.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
Treco and each of the Principals hereby jointly
and severally represent and warrant to the Purchaser as
follows:
2.1. Title to Common Stock. Treco owns the
Shares beneficially and of record, free and clear of any
Liens. Treco has full power and authority to convey the
Shares owned by it free and clear of any Liens, and upon
delivery of payment for the Shares as herein provided,
Treco will convey good and marketable title thereto free
and clear of any Liens. The Sellers are not a party to
or bound by any options, calls, contracts, or commitments
of any character relating to any issued or unissued stock
or any other equity security issued or to be issued by
the Company.
2.2. Authority; Capital Structure. The Sellers
have the absolute and unrestricted right, power,
authority and capacity to execute and deliver this
Agreement, and to perform the obligations hereunder.
This Agreement has been duly and validly executed and
delivered by the Sellers and (assuming the due
authorization, execution and delivery thereof by the
Purchaser) constitutes the legal, valid and binding
obligation of the Sellers, enforceable against the
Sellers in accordance with its terms, subject to general
principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity). The
authorized and outstanding capital stock of the Company
on the date hereof consists of 10,000,000 shares of
Common Stock, of which 4,641,600 shares are issued and
outstanding. As of the date hereof, there are 205,000
shares of the Common Stock reserved for issuance upon
exercise of options under the Company's Stock
Compensation Plan. On the date hereof, there are (a) no
other shares of capital stock of the Company authorized,
issued or outstanding, except 1,000 shares of preferred
stock which are authorized but unissued and (b) no other
outstanding agreements subscriptions, options, warrants,
calls or other rights of any kind obligating the Company
to issue or redeem any shares of Common Stock.
2.3. No Conflict with Other Documents. Neither
the execution and delivery of this Agreement, nor the
carrying out of any of the transactions contemplated
hereby, will result in any violation, termination or
modification of, or be in conflict with, (i) any terms of
any contract, instrument or other agreement to which the
Seller is a party or by which it or any of its properties
are bound or affected, or (ii) any law, rule, regulation,
license, permit, judgment, decree or order applicable to
the Sellers.
2.4. Brokers and Advisors. The Sellers have
taken no action which would give rise to a valid claim
against any party hereto for a brokerage commission,
finder's fee, counseling or advisory fee, or like
payment.
2.5. Company Financial Statements. The
Company's audited financial statements for the fiscal
years ended December 31, 1992, 1993 and 1994 and the
Company's unaudited consolidated financial statements for
the fiscal quarter ended March 31, 1995 (collectively,
the "Financial Statements") have been prepared in
accordance with generally accepted accounting principles
("GAAP") consistently followed throughout the periods
covered by such statements (except (i) as may be stated
in the explanatory notes to such statements or (ii) as
may have been previously disclosed by the Company or the
Sellers to the Purchaser), and present fairly the
financial position and results of operations of the
Company at the dates of such statements and for the
periods covered thereby. The Company's Annual Report on
Form 10-K for the year ended December 31, 1994, its proxy
statement dated March 23, 1995, and all other reports or
documents required to be filed with the Securities and
Exchange Commission pursuant to Sections 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), through the Closing Date complied, in
all material respects, when filed, with the requirements
of the Exchange Act, except as previously disclosed by
the Company to the Purchaser.
2.6. No Undisclosed Liabilities. The Company
has no liabilities or obligations of any nature required
to be reflected, reserved against or accrued on its
balance sheet at March 31, 1995 under FASB 5 or otherwise
under GAAP which were not so reflected or reserved
against or accrued. Since March 31, 1995, the Company
has not incurred any such liability or obligation other
than in the ordinary course of business or except as
previously disclosed by the Company or the Sellers
to the Purchaser.
2.7. No Material Adverse Change. Since
December 31, 1994, there has not been any change in the
Company's financial position, results of operations,
assets, liabilities, net worth or business, other than
changes in the ordinary course of business which have not
been materially adverse and except for such changes as
have been previously disclosed by the Company or the
Sellers to the Purchaser. Since December 31, 1994, the
Company has not experienced any event or condition of any
character which has materially adversely affected or will
so affect its properties, business, financial position,
results of operations, or net worth, except for such
events or conditions as have been previously disclosed
by the Company or the Sellers to the Purchaser.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to
the Sellers as follows:
3.1. Organization and Standing. The Purchaser
is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and
has full corporate power to carry on its business as it
is now being conducted and to own or hold under lease the
properties and assets it now owns or holds under lease.
3.2. Authority. The Purchaser has the absolute
and unrestricted right, power, authority and capacity to
execute and deliver this Agreement, and to perform the
obligations hereunder. Subject to Section 6.8, the
execution, delivery and performance of this Agreement by
the Purchaser has been duly authorized by all necessary
corporate action on the part of the Purchaser. The
Agreement has been duly and validly executed and
delivered by the Purchaser and (assuming the due
authorization, execution and delivery thereof by the
Seller) constitutes the legal, valid and binding
obligation of the Purchaser, enforceable against the
Purchaser in accordance with its terms, subject to
general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in
equity).
3.3. No Conflict with Other Documents. Neither
the execution and delivery of this Agreement, nor the
carrying out of any of the transactions contemplated
hereby, will result in any violation, termination or
modification of, or be in conflict with, (i) the
Purchaser's Charter or By-Laws, (ii) any terms of any
contract, instrument or other agreement to which the
Purchaser is a party or by which it or any of its
properties is bound or affected, or (iii) any law, rule,
regulation, license, permit, judgment, decree or order
applicable to the Purchaser.
3.4. Investment Intent. It is the Purchaser's
present intention to acquire the Shares as an investment
for its own account and not with a view to, or for resale
in connection with, any distribution thereof, and the
Purchaser has no present intention of selling or
distributing such securities in violation of any federal
or state securities laws.
3.5. Integration of the Company. The Purchaser
presently intends to integrate the Company into its
existing environmental products group. The Purchaser
will not be required to make an affirmative response to
Item 2(e) of Schedule 13D. The Purchaser does not
presently intend to dissolve or liquidate the Company or
sell all or substantially all of its assets or to merge
it with other than an affiliate of the Purchaser.
Notwithstanding the foregoing, nothing in the preceding
sentence shall restrict the Purchaser from taking such
actions in the future.
3.6. Company Stock Compensation Plan. If the
Purchaser acquires the Shares it will use its best
efforts to cause the Company to amend its Stock
Compensation Plan and stock option agreements to provide
for the immediate acceleration of vesting of options
previously granted pursuant to such plans.
4. COVENANTS OF THE SELLERS. Each of
the Sellers covenants to the Purchaser that, except as
otherwise consented to in writing by the Purchaser after
the date of this Agreement:
4.1. Cause Conditions to be Satisfied. Each of
the Sellers shall use its best efforts to take or cause
to be taken all actions and do or cause to be done all
things necessary, proper or advisable under applicable
laws to consummate and make effective the transactions
contemplated hereby, including without limitation, all of
the conditions set forth in Sections 6 and 7.2 and the
initiation of the solicitation of proxies and the
approval by the stockholders of the Cash Merger
Agreement.
4.2. Hart-Scott-Rodino Act. On or before May
12, 1995, Treco will file a Premerger Notification Form
(the "Form") required to be made on its part under the
HSR Act and to make any and all additional filings
required to be made on its part under the HSR Act. The
Sellers shall furnish the Purchaser with such necessary
information and reasonable assistance as the Purchaser
may request in connection with the Purchaser's
preparation of necessary filings or submissions under the
provisions of the HSR Act. Sellers shall make their
filing on a basis which is consistent with the
Purchaser's and shall not take a position with the
Federal Trade Commission or the Antitrust Division or any
other party whether orally or in writing which is
inconsistent with such filing.
4.3. No Competing Offers; Prohibited
Transactions. For the period from the date hereof up to
and including the Closing Date, none of the Sellers will
solicit, or cause to be solicited, offers, nor enter nor
cause others to enter into discussions of any sort with
any other party or parties concerning the sale of all or
part of the Shares, the merger or consolidation of
Company or the sale or leasing of all or substantially
all of the Company's assets, and none of the Sellers will
seek or cause any other person to seek the affiliation of
the Company with any entity other than Purchaser and none
of the Sellers will negotiate or entertain any offer with
respect to such affiliation. The Principals will use
their best efforts to assure that the Company will not
issue additional debt or equity securities, declare or
pay any dividend or distribution on its Common Stock.
Treco shall disclose to the Purchaser any other offer it
receives for the Shares.
4.4. Information. The Sellers will use their
best efforts to cause the Company to give the Purchaser
and the Purchaser's advisors full access during normal
business hours throughout the period prior to the Closing
Date to all of the properties, books and records of the
Company and to the officers and employees of the Company.
The Sellers will use their best efforts to cause the
Company to provide all such information concerning the
Company and its businesses and properties as the
Purchaser may reasonably request.
4.5. Shareholders Meeting. The Principals
shall take and shall use their best efforts to cause the
Company to take all action necessary, in accordance with
applicable law and the Company's Charter and By-Laws to
convene a special meeting of the holders of Common Stock
as promptly as practicable for the purpose of considering
and taking action on the Cash Merger Agreement, provided,
however, that the Principals shall not be required to
call the special meeting of the Company's stockholders.
Treco agrees and the Principals shall cause Treco to vote
the Shares at the special meeting of the stockholders of
the Company in the same proportion as the holders of
shares of Common Stock have voted in favor of or against
the Cash Merger Agreement.
5. COVENANTS OF THE PURCHASER. The Purchaser
covenants to the Sellers that, except as otherwise
consented to in writing by the Sellers after the date of
this Agreement:
5.1. Cause Conditions to Be Satisfied. The
Purchaser shall use its best efforts to take or cause to
be taken all actions and do or cause to be done all
things necessary, proper or advisable under applicable
laws to consummate and make effective the transactions
contemplated hereby, including, without limitation, all
of the conditions set forth in Sections 7.1 and 7.3.
5.2. Hart-Scott-Rodino Act. On or before May
12, 1995, the Purchaser will file the Form required to be
made on its part under the HSR Act and to make any and
all additional filings required to be made on its part
under the HSR Act. The Purchaser shall furnish the
Sellers with such necessary information and reasonable
assistance as the Sellers may request in connection with
the Sellers' preparation of necessary filings or
submissions under the provisions of the HSR Act.
5.3. Other Company Shareholders. On or before
the close of business on May 15, 1995, the Purchaser
agrees to propose a transaction to the Board of Directors
of the Company whereby the Company would merge with
Purchaser or an affiliate of Purchaser resulting in the
acquisition of the Shares of Common Stock held by
stockholders other than the Sellers or to enter into
another transaction to the same effect, on terms and
conditions not less favorable than the terms and
conditions under which the Purchaser has agreed to
acquire the Shares hereunder. The Purchaser shall not be
in breach of this covenant if the Purchaser does not make
such proposal to the Company stockholders because the
Company Action does not occur.
5.4. Indemnification for Certain Claims. The
Purchaser agrees to indemnify, defend and hold Treco and
the Principals (from and after the Closing hereunder) and
the other directors of the Company (from and after the
date of the Company Action, provided, however, that this
indemnification provision shall be terminated if the
closing of the Cash Merger Agreement does not occur)
harmless from and against any loss, cost, damage and
expense (collectively, "Losses") which arises out of any
claim relating to the execution, delivery and performance
under this Agreement or the sale of the Shares to the
Purchaser hereunder or the taking of the Company Action,
provided, however, that with respect to the
indemnification of Treco and the Principals hereunder,
the Purchaser shall be liable for only fifty percent
(50%) of the first Five Hundred Thousand Dollars
($500,000) of indemnified Losses (50% of each dollar)
that are based on claims against Treco or the Principals.
The maximum aggregate liability of Treco and the
Principals for such Losses shall be Two Hundred Fifty
Thousand Dollars ($250,000). The Sellers agree to give
the Purchaser prompt notice of any claims of the
Principals which may give rise to a claim by them for
indemnification hereunder. The Purchaser shall have the
right to control the defense of any claims which are the
subject to a claim for indemnification hereunder. Upon
request of the Purchaser, the Principals will assign
their benefits under the D&O Policy and their rights to
indemnification under the Company's Charter and By-Laws
to the Purchaser and will cooperate in all respects with
the Purchaser in all matters relating to the
indemnification provided hereunder. The Company's
directors shall be third party beneficiaries of this
Section 5.4 as it relates to the Purchaser's obligations
to indemnify them. The Purchaser covenants not to sue
the Sellers for any breach of Section 2.3 relating to the
fiduciary duty of the Seller in connection with the
transactions contemplated by this Agreement.
5.5 Certain Employment Agreements. The
Purchaser shall, as soon as practicable after the
purchase of the Shares and the completion of the Cash
Merger Agreement offer to amend the employment agreements
of James L. Lawrence, Homer L. Holden, Jeffrey Boehmer
and Charles Pearson to change the term from a three (3)
year automatically extendable term to a two (2) year
fixed term contract, require a severance payment equal to
(but never less than one years base salary) the base
salary remaining to be paid during such term in the event
the employee is terminated during such term without
cause.
6. CONDITIONS TO THE PURCHASER'S OBLIGATIONS.
Unless waived by the Purchaser in writing in its sole
discretion, all obligations of the Purchaser under this
Agreement are subject to the fulfillment, prior to or at
the Closing, of each of the following conditions:
6.1. Representations, Warranties and Covenants.
The representations and warranties of the Sellers
contained in Section 2 of this Agreement shall be true
and correct on the date hereof and at and as of the
Closing Date with the same effect as though such
representations and warranties had been made again at and
as of such date; the Sellers shall have performed all
obligations and complied with all covenants required by
this Agreement to be performed or complied with by it
prior to the Closing; and the Purchaser shall have
received from the Sellers a certificate or certificates
in such reasonable detail as the Purchaser may reasonably
request, signed by the Sellers and dated the date of
Closing, to the foregoing effect.
6.2. Closing Deliveries. The Sellers shall
have made the closing deliveries required of them
pursuant to Section 1.4.
6.3. Approvals of Governmental Authorities; HSR
Act. All governmental approvals legally necessary in the
opinion of the Purchaser's counsel to consummate the
transactions contemplated by this Agreement shall have
been received and shall not contain any provision which,
in the judgment of the Purchaser, is unduly burdensome.
All waiting periods under the HSR Act, including any
extensions thereof, shall have expired and been
terminated and no objection to the consummation of the
transactions contemplated hereby shall have been raised
by the Federal Trade Commission or the Antitrust Division
of the Department of Justice.
6.4. No Adverse Proceedings or Events. No
suit, action or other proceeding against the Company, the
Purchaser, or the Sellers or their respective officers or
directors, shall be threatened or pending before any
court or governmental agency in which it will be or it is
sought to restrain or prohibit any of the transactions
contemplated by this Agreement or to obtain damages or
other relief in connection with this Agreement or the
transactions contemplated hereby.
6.5. Company Action. As requested by the
Purchaser, the Company shall have taken one or both of
the following actions ("Company Action"): (i) obtained
Board approval of and entered into a definitive cash
merger agreement between the Company and the Purchaser or
an affiliate of the Purchaser containing customary terms
and conditions (the "Cash Merger Agreement"), or (ii)
filed a Schedule 14D-9 with the Securities and Exchange
Commission in which the Board of Directors of the Company
either recommends or states it will not oppose that the
Company's stockholders accept a previously announced
tender offer (the "Tender Offer") by the Purchaser for
any and all of their shares.
6.6. Consulting and Non-Competition Agreement.
Veeder Root Company, and affiliate of the Purchaser, and
Marc Guindon shall have entered into a Consulting and Non-
Competition Agreement. The material terms of this
agreement are set forth on Exhibit A attached hereto. In
addition, Marc Guindon shall have agreed to terminate his
Employment Agreement with the Company upon the request of
the Company at any time after the Purchaser acquires the
Shares and Veeder Root Company executes and delivers the
Consulting and Non-Competition Agreement.
6.7. Certain Prohibited Actions. The Company
shall not have issued or entered into any agreement to
issue any additional debt or equity securities or
declared or agreed to declare and pay any dividend or
make any distribution.
6.8. Danaher Corporation Board Approval. On or
before 11:59 p.m. on May 7, 1995, the Board of Directors
of Danaher Corporation shall have approved this
Agreement. If such approval is not obtained by such
time, this Agreement shall be null and void.
7. CONDITIONS TO THE SELLER'S OBLIGATIONS. Unless
waived by the Sellers, all obligations of the Sellers
under this Agreement are subject to the fulfillment,
prior to or at the Closing, of each of the following
conditions:
7.1. Representations, Warranties and Covenants.
The representations and warranties of the Purchaser
contained in Section 3 of this Agreement shall be true
and correct on the date hereof and at and as of the
Closing Date with the same effect as though such
representations and warranties had been made again at and
as of such date; the Purchaser shall have performed all
obligations and complied with all covenants required by
this Agreement to be performed or complied with by it on
or prior to the Closing; and the Company and the Seller
shall have received from the Purchaser a certificate or
certificates in such reasonable detail as the Company may
reasonably request and dated the date of Closing to the
foregoing effect.
7.2. No Adverse Proceedings or Events. No
temporary restraining order, preliminary or permanent
injunction or other order issued by any court of
competent jurisdiction or other legal restraint or
prohibition preventing or restricting the consummation of
the transactions contemplated hereby shall be in effect
at the Closing Date.
7.3. Consulting and Non-Competition Agreement.
Veeder-Root Company shall have entered into a Consulting
and Non-Competition Agreement with Marc Guindon. The
material terms of this agreement are set forth on Exhibit
A attached hereto. In addition, Marc Guindon shall have
agreed to terminate his Employment agreement with the
Company upon the request of the Company at any time after
the Purchaser acquires the Shares and Veeder Root Company
executes and delivers the Consulting and Non-Competition
Agreement.
8. MISCELLANEOUS.
8.1. Expenses. Each party to this Agreement
shall pay all of its expenses relating hereto, including
fees and disbursements of its counsel, accountants and
financial advisors, whether or not the transactions
hereunder are consummated.
8.2. Notices. Except as otherwise provided
herein, all notices, requests, demands and other
communications under or in connection with this Agreement
shall be in writing, and, (a) if to the Purchaser, shall
be addressed to:
Patrick W. Allender, Senior Vice President
Danaher Corporation
1250 24th Street, N.W., Suite 800
Washington, D.C. 20037
Fax 202-828-0860
and
George P. Stamas, Esquire
Piper & Marbury L.L.P.
1200 19th Street, N.W.
Washington, D.C. 20036
Fax 410-576-1688
(b) if to the Sellers shall be addressed to:
Groupe Treco, Ltee
c/o Heenan Blaikie
1250 Rene-Levesque Blvd. West, Suite 2500
Montreal, Quebec H3B 4Y1
Fax No. 610-666-1233
Marc Guindon, Chairman and Chief Executive
Officer
Total Containment, Inc.
422 Business Center
A130 North Drive
P.O. Box 939
Oaks, Pennsylvania 19456
Fax No. 610-666-1233
Marcel Dutil
President et Chef de la direction
le Groupe Canan Manac
270 Chemin du Tremblay
Boucherville, (Quebec)
Canada J4B 5X9
Fax 514-641-4001
with a copy to:
Joseph M. Haranza, Esq.
Stevens & Lee
111 Sixth Street, P.O. Box 679
Reading, Pennsylvania 19603
Fax 610-376-5610
All such notices, requests, demands or
communications shall be mailed postage prepaid, certified
mail, return receipt requested, or by overnight delivery
or delivered personally, and shall be sufficient and
effective when delivered to or received at the address so
specified. Any party may change the address at which it
is to receive notice by like written notice to the other.
8.3. Termination. The parties, by mutual
written consent, may terminate this Agreement at any time
prior to the Closing and, unless otherwise specifically
provided in such consent, any such termination shall be
without liability on the part of any party hereto.
Either the Purchaser or the Sellers may elect to
terminate this Agreement in the event that (i) any
condition for the terminating party to close has not been
met or waived by it or them in its or their sole
discretion on or before September 30, 1995, or (ii) the
purchase of the Shares is not closed by September 30,
1995. Any such termination shall be without liability to
the Purchaser or the Sellers, except to the extent that
there shall have occurred any willful or intentional
breach of this Agreement or any intentional
misrepresentation or breach of warranty, as to each of
which all legal remedies of the party adversely affected
shall survive and be enforceable.
8.4. Entire Agreement. This Agreement together
with Exhibit A is intended by the parties to and does
constitute the entire agreement of the parties with
respect to the transactions contemplated by this
Agreement. This Agreement supersedes any and all prior
understandings, written or oral, between the parties, and
this Agreement may be amended, modified, waived,
discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the
amendment, modification, waiver, discharge or termination
is sought.
8.5. Assignment. This Agreement may not be
assigned by any party hereto, except that the Purchaser
may assign this Agreement to one or more of its
subsidiaries, provided that the Purchaser shall remain
primarily liable on this Agreement, notwithstanding any
assignment.
8.6. Break-Up Fee. (a) If the Closing has not
taken place and an offer that is made prior to September
30, 1995 results in a Third Party Acquisition (as
defined) by the offeror which closes prior to the
termination of this Agreement or within one (1) year
thereafter, the Sellers shall pay the Purchaser, within
five (5) days following receipt of its proceeds from the
Third Party Acquisition, a fee (the "Break-Up Fee") in an
amount equal to the difference between the aggregate
consideration paid to the Sellers with respect to such
Third Party Acquisition and the Purchase Price.
(b) If the Purchaser closes under this
Agreement, and then, within six (6) months following the
Closing Date, as a result of a successful competing
Higher Offer for the Company, the stockholders of the
Company are to receive a price per Share in excess of the
Per Share Price, the Purchaser shall have the right to
put the Shares to the Seller at the Per Share Price and
Treco shall pay a Break-Up Fee to the Purchaser following
Treco's receipt of payment for the Shares.
(c) "Higher Offer" means the price per share
of Common Stock (or equivalent price offered for the
Company calculated on a per share basis) that is offered
by a third party in excess of the Per Share Price.
"Third Party Acquisition" means (i) the Company is
acquired by merger or otherwise by a third party, (ii) a
third party acquires all or substantially all of the
total assets of the Company, (iii) the Company adopts a
plan of liquidation or an extraordinary dividend relating
to all or substantially all of the assets, or (iv) the
Company repurchases the Shares.
8.7. Governing Law. This Agreement shall be
construed in accordance with and governed by the laws of
the State of Delaware.
8.8. Survival. Then representations and
warranties set forth in Sections 2.1 through 2.4 and 3.1
through 3.4 shall survive the Closing without limitation.
The representations and warranties set forth in Sections
2.5 through 2.7 shall survive the Closing for a period of
one (1) year from the Closing Date, provided however,
that the Purchaser's remedies after the Closing for any
inaccuracy or breach of representation or warranty set
forth in Sections 2.5 through 2.7 shall be limited to the
right to indemnification set forth in Section 8.9. All
agreements of the parties shall survive the Closing and
expire in accordance with their terms.
8.9. Indemnification by Guindon. After the
Closing Date, Marc Guindon covenants and agrees to
indemnify, defend and hold the Purchaser, the Company and
their respective directors and officers harmless from any
losses, costs, damages and expenses (collectively, a
"Loss") actually incurred by it which arises out of the
inaccuracy or breach of any representation or warranty
set forth in Sections 2.5 through 2.7 that results in, or
may reasonably be expected to result in, a material
adverse change in the Company's financial position or
results of operations. Marc Guindon shall have no
obligation to indemnify the Purchaser under this Section
unless (i) he had actual knowledge prior to the Closing
of the inaccuracy or breach of any representation or
warranty set forth in Sections 2.5 through 2.7 that gives
rise to the Loss and (ii) he did not disclose such
information to the Purchaser prior to the Closing Date.
Marc Guindon's indemnification obligation under this
Section 8.9 shall not exceed Two Million Five Hundred
Thousand Dollars ($2,500,000) in the aggregate. In no
event shall Marc Guindon be liable, for punitive damages.
Except as set forth in this Section 8.9 with respect to
Marc Guindon, neither Treco, Marc Guindon nor Marcel
Dutil shall have any liability to the Purchaser, the
Company or their respective directors or officers nor
shall any of them be obligated to indemnify the Purchaser
for any inaccuracy or breach of the representations or
warranties set forth in Sections 2.5 though 2.7 or
otherwise for nondisclosure or misdisclosure in
connection with this Agreement or in the transactions
contemplated hereby or otherwise, whether such liability
arises in tort, contract or under the federal securities
laws or otherwise; the Purchasers sole and exclusive
remedy shall be to require Mr. Guindon to indemnify it
pursuant to this Section 8.9. Marc Guindon shall not be
liable under this Section 8.9 unless a claim for
indemnification is made within one year following the
Closing Date. Marc Guindon's indemnification obligation
for claims made within one (1) year of the Closing Date
shall survive until the resolution of such claim.
8.10. Publicity. Except as required under
applicable law, neither the Purchaser nor the Sellers
shall issue any press release and the Sellers shall use
their best efforts to cause the Company not to issue any
press release relating to this Agreement or the
transactions contemplated hereby without the prior
consent of the other party, which will not be
unreasonably withheld.
IN WITNESS WHEREOF, the Purchaser, the Company and
the Seller have caused this Agreement to be duly executed
and their respective seals to be hereunto affixed as of
the date first above written.
WITNESS: DANAHER CORPORATION
/s/ George P. Stamas /s/ James H.
Ditkoff
By: James H. Ditkoff
Title: Vice President
WITNESS: GROUPE TRECO, LTEE
/s/ Joseph M. Harenza /s/ Marc Guindon
By: Marc Guindon
Title: President
/s/ Joseph M. Harenza /s/ Marc Guindon
Marc Guindon
/s/ Joseph M. Harenza /s/ Marcel Dutil
Marcel Dutil
EXHIBIT 2
TELEPHONE (202) 828-0850
TELECOPIER (202) 828-0860
DANAHER CORPORATION
1250 24th Street, N.W.
Suite 800
Washington, D.C. 20037
May 15, 1995
Board of Directors
Total Containment, Inc.
422 Business Center
A130 North Drive
P.O. Box 939
Oaks, Pennsylvania 19456
Gentlemen and Ms. Pageau-Goyette:
As I believe you are aware, on May 7, 1995 we
entered into a Stock Purchase Agreement (the "Agreement")
with Group Treco, Ltee, Marc Guindon and Marcel Dutil
pursuant to which we agreed to purchase 2,601,000 shares
(approximately 56.0%) of Common Stock of Total
Containment, Inc. ("TCI") for a purchase price of $10.50
per share. It is our understanding that you have been
furnished with copies of that Agreement.
Pursuant to the Agreement, we are pleased to make an
offer to acquire the remaining shares of Common Stock of
TCI held by shareholders other than Treco for a purchase
price of $10.50 per share. We propose to acquire those
shares pursuant to the terms of an agreement and plan of
merger between TCI and a newly formed, wholly-owned
subsidiary of Danaher Corporation. In that regard,
enclosed is a draft of an agreement and plan of merger.
Board of Directors
May 15, 1995
Page 2
We and our advisors are ready and eager to meet with
you and your advisors as soon as possible to agree upon
the terms of a definitive merger agreement. Working
together, I am confident that we can develop a definitive
agreement very quickly.
I would very much appreciate hearing from you
promptly so that we both may discuss how best to proceed.
Very truly yours,
DANAHER CORPORATION
/s/ George M. Sherman
George M. Sherman
Chief Executive Officer and President
