SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported):
May 9, 1995
________________________________________
THERMO PROCESS SYSTEMS INC.
(Exact name of Registrant as specified in its charter)
Delaware 1-9549 04-2925807
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation or File Number) Identification Number)
organization)
12068 Market Street
Livonia, Michigan 48150
(Address of principal executive offices) (Zip Code)
(617) 622-1000
(Registrant's telephone number
including area code)
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FORM 8-K
Item 2. Acquisition or Disposition of Assets
------------------------------------
On May 9, 1995, Thermo Process Systems Inc. ("Thermo Process" or the
"Company") and Thermo Instrument Systems Inc. ("Thermo Instrument") agreed
to dissolve their Thermo Terra Tech joint venture (the "Joint Venture") by
distributing to the partners the businesses and other assets that had
originally been contributed to the Joint Venture, together with businesses
and assets acquired by the Joint Venture from third parties. Thermo Process
further agreed to purchase the businesses that are to be distributed to
Thermo Instrument for $34,267,000 in cash. As a result of this transaction,
Thermo Process increased its ownership in the Joint Venture from 51% to
100%. Thermo Process and Thermo Instrument are both majority-owned,
publicly traded subsidiaries of Thermo Electron Corporation ("Thermo
Electron"). The Joint Venture was originally established pursuant to a
general partnership agreement dated May 16, 1994 among wholly owned
subsidiaries of Thermo Process and Thermo Instrument.
The terms of the acquisition were determined by negotiation between
the management of Thermo Process and the management of Thermo Instrument,
based on the valuation methodology employed in connection with the
formation of the joint venture. The funds for the purchase price were
provided from the proceeds of a $35,000,000 promissory note issued to
Thermo Electron that bears interest at the Commercial Paper Composite Rate
plus 25 basis points and is due May 13, 1997.
Thermo Process has managed the Joint Venture since its inception.
Thermo Process has no present intention to operate the businesses formerly
conducted by the Joint Venture in any manner materially different from the
manner in which such businesses were operated prior to the dissolution of
the Joint Venture and the purchase of such businesses from Thermo
Instrument.
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FORM 8-K
Item 7. Financial Statements, Pro Forma Combined Condensed Financial
------------------------------------------------------------
Information and Exhibits
------------------------
(b) Pro Forma Combined Condensed Financial Information
The following unaudited pro forma combined condensed
financial statements set forth the results of operations for the
nine months ended December 31, 1994, and for the year ended April
2, 1994, as if the acquisition by the Company of the businesses
distributed to Thermo Instrument as a result of the dissolution
of the Joint Venture had occurred at the beginning of fiscal
1994, and the financial position as of December 31, 1994, as if
the acquisition had occurred as of that date.
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FORM 8-K
THERMO PROCESS SYSTEMS INC.
PRO FORMA COMBINED CONDENSED STATEMENT OF INCOME
Nine Months Ended December 31, 1994
(Unaudited)
Historical Pro Forma
----------- -----------------------
Thermo
Process Adjustments Combined
----------- ----------- --------
(In thousands except per share amounts)
Revenues $ 94,550 $ - $ 94,550
-------- -------- --------
Costs and Operating Expenses:
Cost of revenues 70,666 - 70,666
Selling, general and administrative
expenses 16,769 - 16,769
New business development expenses 643 - 643
-------- -------- --------
88,078 - 88,078
-------- -------- --------
Operating Income 6,472 - 6,472
Gain on Issuance of Stock by Subsidiary 1,058 - 1,058
Interest Income 2,203 27 2,230
Interest Expense (includes $480 for
note to parent company in fiscal 1995) (1,519) (1,680) (3,199)
Gain on Sale of Investments (includes
$746 on sale of related party
debentures in fiscal 1995) 749 - 749
-------- -------- --------
Income Before Income Taxes and
Minority Interest 8,963 (1,653) 7,310
Income Tax Provision (1,978) (525) (2,503)
Minority Interest Expense (3,934) 2,965 (969)
-------- -------- --------
Net Income $ 3,051 $ 787 $ 3,838
======== ======== ========
Earnings per Share $ .18 $ .22
======== ========
Weighted Average Shares 17,099 17,099
======== ========
See notes to pro forma combined condensed financial statements.
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FORM 8-K
THERMO PROCESS SYSTEMS INC.
PRO FORMA COMBINED CONDENSED STATEMENT OF INCOME
Year Ended April 2, 1994
(Unaudited)
Historical Pro Forma
----------- -----------------------
Thermo
Process Adjustments Combined
----------- ----------- --------
(In thousands except per share amounts)
Revenues $110,131 $ - $110,131
-------- -------- --------
Costs and Operating Expenses:
Cost of revenues 84,142 - 84,142
Selling, general and administrative
expenses 21,195 - 21,195
New business development expenses 447 - 447
Costs associated with divisional
restructuring 2,661 - 2,661
-------- -------- --------
108,445 - 108,445
-------- -------- --------
Operating Income 1,686 - 1,686
Gain on Issuance of Stock by Subsidiary 4,488 - 4,488
Interest Income 1,955 25 1,980
Interest Expense (1,387) (2,240) (3,627)
Gain on Sale of Investments 645 - 645
-------- -------- --------
Income Before Income Taxes, Minority
Interest, and Cumulative Effect of
Change in Accounting Principle 7,387 (2,215) 5,172
Income Tax (Provision) Benefit 40 (532) (492)
Minority Interest Expense (4,018) 3,545 (473)
-------- -------- --------
Income Before Cumulative Effect of
Change in Accounting Principle $ 3,409 $ 798 $ 4,207
======== ======== ========
Earnings per Share Before Cumulative
Effect of Change in Accounting
Principle $ .20 $ .25
======== ========
Weighted Average Shares 16,863 16,863
======== ========
See notes to pro forma combined condensed financial statements.
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FORM 8-K
THERMO PROCESS SYSTEMS INC.
PRO FORMA COMBINED CONDENSED BALANCE SHEET
December 31, 1994
(Unaudited)
Historical Pro Forma
----------- -----------------------
Thermo
Process Adjustments Combined
----------- ----------- --------
(In thousands)
ASSETS
Current Assets:
Cash and cash equivalents $ 43,564 $ 733 $ 44,297
Short-term available-for-sale
investments, at quoted market value 5,992 - 5,992
Accounts receivable, net 21,273 - 21,273
Unbilled contract costs and fees 9,811 - 9,811
Inventories 2,388 - 2,388
Prepaid expenses 3,405 - 3,405
Prepaid and refundable income taxes 2,283 - 2,283
-------- -------- --------
88,716 733 89,449
-------- -------- --------
Property, Plant and Equipment, at Cost 74,424 - 74,424
Less: Accumulated depreciation
and amortization 32,806 - 32,806
-------- -------- --------
41,618 - 41,618
-------- -------- --------
Long-term Available-for-sale
Investments, at Quoted Market Value 10,390 - 10,390
-------- -------- --------
Other Assets 11,545 - 11,545
-------- -------- --------
Cost in Excess of Net Assets of
Acquired Companies 37,689 - 37,689
-------- -------- --------
$189,958 $ 733 $190,691
======== ======== ========
See notes to pro forma combined condensed financial statements.
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FORM 8-K
THERMO PROCESS SYSTEMS INC.
PRO FORMA COMBINED CONDENSED BALANCE SHEET
December 31, 1994
(Unaudited)
Historical Pro Forma
----------- -----------------------
Thermo
Process Adjustments Combined
----------- ----------- --------
(In thousands)
LIABILITIES AND SHAREHOLDERS'
INVESTMENT
Current Liabilities:
Accounts payable $ 7,912 $ - $ 7,912
Other accrued liabilities 20,728 - 20,728
Due to parent company and Thermo
Electron Corporation 3,440 - 3,440
-------- -------- --------
32,080 - 32,080
-------- -------- --------
Deferred Income Taxes 1,882 - 1,882
-------- -------- --------
Long-term Obligations:
Due to parent company 15,000 35,000 50,000
Other 19,085 - 19,085
-------- -------- --------
34,085 35,000 69,085
-------- -------- --------
Minority Interest 55,643 (34,267) 21,376
-------- -------- --------
Shareholders' Investment:
Common stock 1,741 - 1,741
Capital in excess of par value 46,923 - 46,923
Retained earnings 20,663 - 20,663
Treasury stock (3,030) - (3,030)
Cumulative translation adjustment 55 - 55
Net unrealized loss on
available-for-sale investments (84) - (84)
-------- -------- --------
66,268 - 66,268
-------- -------- --------
$189,958 $ 733 $190,691
======== ======== ========
See notes to pro forma combined condensed financial statements.
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FORM 8-K
THERMO PROCESS SYSTEMS INC.
NOTES TO PRO FORMA COMBINED CONDENSED FINANCIAL STATEMENTS
(Unaudited)
Note 1 -Pro Forma Adjustments to Pro Forma Combined Condensed Statements
of Income
The pro forma adjustment to "Interest income" represents an estimate
of the increase in interest income earned due to the Company's higher cash
position as a result of the net cash proceeds of $733,000 (Note 2),
calculated using an average interest rate of 4.88% for the nine months
ended December 31, 1994, and 3.46% for the year ended April 2, 1994.
The pro forma adjustment to "Interest expense" represents interest on
a $35,000,000 promissory note due to Thermo Electron (Note 2), calculated
using the Commercial Paper Composite Rate plus 25 basis points, or 6.40%,
which was the rate of interest in effect at the time the promissory note
was issued. The interest rate on the promissory note will be adjusted
quarterly to reflect changes in the Commercial Paper Composite Rate.
The pro forma adjustment to "Provision for income taxes" represents a
reduction in income taxes associated with the adjustments in the
accompanying pro forma statements of income, calculated at the Company's
statutory income tax rate of 40%.
The pro forma adjustment to "Minority interest expense" represents the
elimination of the actual minority interest expense recorded for Thermo
Instrument's ownership in the Joint Venture.
Note 2 -Pro Forma Adjustments to Pro Forma Combined Condensed Balance
Sheet
The pro forma adjustment to "Cash and cash equivalents" includes
$34,267,000 of cash expended by the Company to purchase the businesses
distributed to Thermo Instrument as a result of the dissolution of the
Joint Venture, offset by the proceeds from the $35,000,000 promissory note
issued to Thermo Electron.
The pro forma adjustment to "Long-term obligations, due to parent
company" represents a promissory note due May 13, 1997, that was issued to
Thermo Electron to finance the acquisition of the businesses distributed to
Thermo Instrument as a result of the dissolution of the Joint Venture.
The pro forma adjustment to "Minority interest" represents the
elimination of the actual minority interest recorded for Thermo
Instrument's ownership in the Joint Venture.
8PAGE
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FORM 8-K
Item 7. Financial Statements, Pro Forma Combined Condensed Financial
------------------------------------------------------------
Information and Exhibits
------------------------
(c) Exhibits
2.1 Agreement of Dissolution of Partnership dated May 9,
1995 among Thermo Terra Tech (the Partnership), Terra
Tech Labs Inc. (a wholly owned subsidiary of Thermo
Process Systems Inc.) and Eberline Analytical
Corporation, Skinner & Sherman, Inc., TMA/NORCAL Inc.,
Normandeau Associates Inc., Bettigole Andrews & Clark
Inc., Fellows, Read & Associates Inc. and Thermo
Consulting Engineers Inc. (each a wholly owned
subsidiary of Thermo Instrument Systems Inc.).
2.2 Stock Purchase Agreement dated May 9, 1995 between
Thermo Process Systems Inc. and Thermo Instrument
Systems Inc.
2.3 Note dated May 17, 1995 from Thermo Process Systems Inc.
to Thermo Electron Corporation.
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FORM 8-K
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized, on this 24th day of May 1995.
THERMO PROCESS SYSTEMS INC.
Paul F. Kelleher
---------------------------
Paul F. Kelleher
Chief Accounting Officer
EXHIBIT 2.1
THERMO TERRA TECH
AGREEMENT OF DISSOLUTION OF PARTNERSHIP
WHEREAS, the partners identified below (the "Partners") are
parties to that certain Agreement of Partnership dated May 16,
1994 (the "Partnership Agreement"), establishing
a Massachusetts general partnership known as Thermo Terra Tech
(the "Partnership"); and
WHEREAS, the Partners wish to dissolve the Partnership;
NOW, THEREFORE, in consideration of the mutual obligations
set forth below and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Dissolution. The Partnership is hereby dissolved
pursuant to Section 8.01(a)(i) of the Partnership Agreement,
effective as of April 2, 1995.
2. Distributions of Partnership Assets.
(a) Pursuant to, and subject to the provisions of,
Section 8.02 of the Partnership Agreement, the Partnership does
hereby distribute, grant, convey, assign, transfer and deliver to
each respective Partner, in kind, all of the Partnership's right,
title and interest in and to the property, assets and benefits,
wherever located, originally transferred by such Partner to the
Partnership upon the establishment of the Partnership (with
respect to each Partner, such "Partner's Assets") pursuant to
that certain Bill of Sale and Assumption of Liabilities dated May
16, 1994 between the Partnership and such Partner (with respect
to each Partner, such "Partner's Bill of Sale"), together with
all other property, assets and benefits acquired by the
Partnership and used in the business or businesses conducted by
the Partnership with such Partner's Assets, and including,
without other limitation:
(i) All fixed assets and other tangible property,
machinery, tools, equipment, dies, patterns, blueprints,
furniture, equipment, books, records and supplies, relating
to such Partner's Assets;
(ii) All inventories relating to such Partner's Assets
including raw materials, work in process, finished goods and
packaging and shipping materials wherever located;
(iii) All customer lists, orders and inquiries, all
claims and rights of recovery or setoff against suppliers
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and vendors, and any rights under agreements and contracts,
relating to such Partner's Assets;
(iv) All inventions, patents, transferable licenses,
transferable permits and transferable franchises, copyrights
and know-how, proprietary software and computer programs,
relating to such Partner's Assets; and
(v) Any trade accounts receivable, notes receivable
and miscellaneous receivables relating to such Partner's
Assets.
(b) For purposes of this Section 2, any property,
assets and benefits acquired by the Partnership in consideration
of cash or cash equivalents that had been contributed to the
Partnership by Terra Tech shall be deemed to be Partner's Assets
of Terra Tech, and the Partnership does hereby distribute, grant,
convey, assign, transfer and deliver to Terra Tech all of the
Partnership's right, title and interest in and to any such
Partner's Assets, wherever located.
3. Warranties.
(a) The Partnership hereby warrants, covenants and
promises to each Partner that it is the lawful owner of such
Partner's respective Partner's Assets, that it has good right to
transfer the same as aforesaid, and that it will warrant and
defend the same against the lawful claims and demands of all
persons; provided, however, that no such warranty, covenant or
promise is made if and to the extent that any defect in title is
a direct or indirect result of any misrepresentations and/or
breaches of warranties of title set forth in such Partner's Bill
of Sale.
(b) THE FOREGOING TRANSFERS ARE MADE "AS IS" AND ALL
WARRANTIES OF CONDITION, MERCHANTABILITY, QUALITY OR FITNESS FOR
USE, OR ANY OTHER WARRANTY, EXPRESSED OR IMPLIED, WITH THE
EXCEPTION OF WARRANTIES OF TITLE SET FORTH HEREIN ARE HEREBY
DISCLAIMED.
(c) Notwithstanding the foregoing, to the extent that
the assignment of any contract or authorization by the
Partnership to a Partner would constitute a breach thereof, this
Agreement shall not constitute a contract to assign same. If the
Partnership shall fail to obtain the consent of any party
necessary to effect an assignment to any Partner of any such
contract or authorization requiring such consent, the Partnership
shall cooperate with such Partner in any reasonable arrangement
requested by such Partner designed to provide for such Partner
the benefit, monetary or otherwise, of any such contract or
authorization, including enforcement of any and all rights of the
Partnership against the other party thereto arising out of breach
or cancellation thereof by such other party or otherwise.
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4. Assumptions of Liabilities.
(a) Each Partner hereby assumes any and all
liabilities, commitments and obligations of the Partnership
originally transferred by such Partner to the Partnership upon
the establishment of the Partnership (with respect to each
Partner, such "Partner's Liabilities") pursuant to such Partner's
respective Partner's Bill of Sale, to the extent that such
Partner's Liabilities have not been discharged by the Partnership
prior to the date hereof, together with all other liabilities,
commitments and obligations assumed or incurred by the
Partnership in connection with the business or businesses
conducted by the Partnership with such Partner's Assets, and
agrees to perform, pay and discharge such Partner's Liabilities,
and warrants that it will indemnify and hold harmless the
Partnership and every other Partner against such Partner's
failure to do so.
(b) For purposes of this Section 4 of this Agreement,
any and all liabilities, commitments and obligations incurred or
assumed by the Partnership in connection with any business or
businesses acquired by the Partnership in consideration of cash
or cash equivalents that had been contributed to the Partnership
by Terra Tech shall be deemed to be Terra Tech's Partner's
Liabilities, and Terra Tech hereby assumes any and all such
Partner's Liabilities, together with all other liabilities,
commitments and obligations assumed or incurred by the
Partnership in connection with the business or businesses
conducted by the Partnership with the assets so acquired, and
agrees to perform, pay and discharge such Partner's Liabilities,
and warrants that it will indemnify and hold harmless the
Partnership and every other Partner against Terra Tech's failure
to do so.
5. Releases. The Partnership and each of the Partners
hereby release, hold harmless and forever discharge one another,
and their respective successors and assigns, of and from any and
all actions, causes of action, claims, demands, costs,
liabilities, losses, expenses and compensation, past, present or
future, known or unknown, accrued or unaccrued, which the
Partnership and/or any Partner ever had, now has or may have
against any of one or more of the Partners under Section 5.03 of
the Partnership Agreement.
6. Termination of the Partnership. The Partnership shall
be terminated in accordance with the provisions of Section
8.01(c) of the Partnership Agreement.
7. Successors and Assigns. Each and every provision
hereof shall be binding upon and shall inure to the benefit of
the parties and their respective successors and assigns.
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8. Entire Agreement. This Agreement constitutes the full
and complete agreement of the parties hereto with respect to the
subject matter hereof.
9. Captions. Titles or captions of sections contained in
this Agreement are inserted only as a matter of convenience and
for reference, and in no way define, limit, extend or describe
the scope of this Agreement or the intent of any provision
hereof.
10. Counterparts. This Agreement may be executed in a
number of counterparts, all of which together shall for all
purposes constitute one Agreement, binding on all of the parties
hereto notwithstanding that all such parties have not signed the
same counterpart.
11. Applicable Law. This Agreement and the rights and
obligations of the parties hereunder shall be governed by and
interpreted, construed and enforced in accordance with the laws
of the Commonwealth of Massachusetts.
12. Gender, Etc. In the case of all terms used in this
Agreement, the singular shall include the plural and the
masculine gender shall include the feminine and neuter, and vice
versa, as the context requires.
13. Creditors. None of the provisions of this Agreement
shall be for the benefit of or enforceable by any creditor of any
Partner or of the Partnership other than a Partner who is such a
creditor of the Partnership.
14. Definitions. Capitalized terms used in this Agreement
without definition shall have the respective meanings assigned to
them in the Partnership Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
on May 9, 1995, to be effective as of the 2nd day of April, 1995.
THE PARTNERSHIP: THERMO TERRA TECH
By: TERRA TECH LABS INC.
Its: General Partner
By: John P. Appleton
---------------------
John P. Appleton
Title: Attorney-in-Fact
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THE PARTNERS:
TERRA TECH LABS INC. SKINNER & SHERMAN, INC.
By: John P. Appleton By: Arvin H. Smith
-------------------- ------------------
John P. Appleton Arvin H. Smith
Title: Attorney-in-Fact Title: Attorney-in-Fact
EBERLINE ANALYTICAL CORPORATION TMA/NORCAL INC.
By: Arvin H. Smith By: Arvin H. Smith
------------------ ------------------
Arvin H. Smith Arvin H. Smith
Title: Attorney-in-Fact Title: Attorney-in-Fact
NORMANDEAU ASSOCIATES INC. BETTIGOLE, ANDREWS &
CLARK INC.
By:Arvin H. Smith By: Arvin H. Smith
------------------- ------------------
Arvin H. Smith Arvin H. Smith
Title: Attorney-in-Fact Title: Attorney-in-Fact
FELLOWS, READ & ASSOCIATES INC. THERMO CONSULTING
ENGINEERS INC.
By: Arvin H. Smith By: Arvin H. Smith
------------------ ------------------
Arvin H. Smith Arvin H. Smith
Title: Attorney-in-Fact Title: Attorney-in-Fact
AA951430010
Exhibit 2.2
Stock Purchase Agreement
This Stock Purchase Agreement dated May 9, 1995 is entered
into by Thermo Instrument Systems Inc., a Delaware corporation
(the "Seller"), and Thermo Process Systems Inc., a Delaware
corporation (the "Buyer").
WHEREAS, Seller owns 100% of the issued and outstanding
shares (the "Shares") of the capital stock of each of Eberline
Analytical Corporation, Skinner & Sherman, Inc., TMA/NORCAL Inc.,
Normandeau Associates Inc., Bettigole Andrews & Clark Inc.,
Fellows, Read & Associates Inc., and Thermo Consulting Engineers
Inc. (collectively, the "Corporations"); and
WHEREAS, Buyer wishes to purchase, and Seller wishes to
sell, the Shares, upon the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the promises set forth
below and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Seller and
Buyer hereby agree as follows:
1. Delivery of Outstanding Shares. At the Closing (as
defined in Section 3 hereof), and subject to the terms and
conditions contained in this Agreement, Seller shall transfer to
Buyer and Buyer shall acquire from Seller, all right, title and
interest in and to the Shares, free and clear of all liens,
encumbrances, charges, equities or restrictions.
2. Purchase Price. In exchange for the Shares, and
subject to the terms and conditions contained in this Agreement,
Buyer shall pay to Seller at the Closing $34,267,000 in cash (the
"Purchase Price").
3. Time and Place of Closing. The closing of the
transactions contemplated by this Agreement (the "Closing") shall
take place immediately upon the execution of this Agreement by
the parties hereto or at such other time and place as the parties
may agree.
4. Closing Deliveries. At the Closing, in addition to the
taking of such other action as may be provided in this Agreement,
(i) Seller shall deliver certificates for the Shares to Buyer,
duly endorsed by Seller or accompanied by duly executed stock
powers, (ii) Buyer shall deliver the Purchase Price to Seller,
and (iii) Seller and Buyer shall each deliver such closing
certificates, documents and opinions of counsel, if any, as may
be requested the other.
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5. Representations and Warranties of Seller. Seller
represents and warrants to Buyer that, as of the Closing Date:
(a) Organization and Qualification. Seller is a
corporation validly existing and in good standing under the laws
of the State of Delaware.
(b) Authority. The execution and delivery of this
Agreement, and the consummation of the transactions contemplated
hereby to be performed by Seller, have been duly and validly
authorized by all necessary corporate action on the part of
Seller. This Agreement constitutes the valid and binding
obligation of Seller enforceable against Seller in accordance
with the terms hereof.
(c) Ownership of Shares; Authority to Transfer. The
Shares are not encumbered and are freely transferable by Seller.
Seller holds good and marketable title to the Shares to be
transferred to Buyer hereunder and no third party is entitled to
claim any right thereto or make any claim thereon. The transfer
of the Shares to Buyer pursuant to this Agreement will vest in
Buyer title to the Shares, free and clear of all liens, claims,
equities, options, calls, voting trusts, agreements, commitments
and encumbrances whatsoever.
(d) SELLER DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES
WITH RESPECT TO THE CORPORATIONS OR THEIR RESPECTIVE BUSINESSES,
ASSETS AND/OR LIABILITIES. THE TRANSFER OF THE SHARES TO BUYER
IS MADE "AS IS" AND ALL WARRANTIES OF CONDITION,
MERCHANTABILITY, QUALITY OR FITNESS FOR USE, OR ANY OTHER
WARRANTY, EXPRESSED OR IMPLIED, WITH THE EXCEPTION OF WARRANTIES
OF TITLE SET FORTH HEREIN ARE HEREBY DISCLAIMED.
6. Representations and Warranties of Buyer. Buyer
represents and warrants to Seller that, as of the Closing Date:
(a) Organization and Qualification. Buyer is a
corporation validly existing and in good standing under the laws
of the State of Delaware.
(b) Authority. The execution and delivery of this
Agreement, and the consummation of the transactions contemplated
hereby to be performed by Buyer, have been duly and validly
authorized by all necessary corporate action on the part of
Buyer. This Agreement constitutes the valid and binding
obligation of Buyer enforceable against Buyer in accordance with
the terms hereof.
7. Further Assurances. From time to time and at any time
after the Closing, and without further expense to the requesting
party, each party will execute and furnish to the requesting
party all documents and will do or cause to be done all other
things that the requesting party may reasonably request in order
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to give full effect to this Agreement and to effectuate the
intent of the parties.
8. Confidentiality of Information. Seller agrees that (a)
it has obtained confidential and proprietary information about
the Corporations, including, but not limited to, the
Corporations' business plans strategies, customer lists, and
financial and statistical information and (b) it will not
disclose, directly or indirectly, such information or use it for
any purpose other than for Buyer's benefit.
9. Successors and Assigns. Each and every provision
hereof shall be binding upon and shall inure to the benefit of
the parties and their respective successors and assigns.
10. Entire Agreement. This Agreement constitutes the full
and complete agreement of the parties hereto with respect to the
subject matter hereof.
11. Captions. Titles or captions of sections contained in
this Agreement are inserted only as a matter of convenience and
for reference, and in no way define, limit, extend or describe
the scope of this Agreement or the intent of any provision
hereof.
13. Counterparts. This Agreement may be executed in
counterparts, all of which together shall for all purposes
constitute one Agreement, binding on the parties hereto
notwithstanding that such parties have not signed the same
counterpart.
14. Applicable Law. This Agreement and the rights and
obligations of the parties hereunder shall be governed by and
interpreted, construed and enforced in accordance with the laws
of the Commonwealth of Massachusetts.
15. Creditors. None of the provisions of this Agreement
shall be for the benefit of or enforceable by any creditor of any
party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
on May 9, 1995.
SELLER: BUYER:
THERMO INSTRUMENT SYSTEMS INC. THERMO PROCESS SYSTEMS INC.
By: Arvin H. Smith By: John P. Appleton
------------------ --------------------
Arvin H. Smith John P. Appleton
President President
AA951430011
Exhibit 2.3
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THESE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT, AND NOT WITH A VIEW
TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, PLEDGED,
MORTGAGED, HYPOTHECATED OR OTHERWISE TRANSFERRED (1) WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT COVERING THESE
SECURITIES OR (2) UNLESS AN EXEMPTION FROM REGISTRATION IS
AVAILABLE.
THERMO PROCESS SYSTEMS INC.
Promissory Note Due May 13, 1997
Waltham, Massachusetts
May 17, 1995
For value received, THERMO PROCESS SYSTEMS INC., a Delaware
corporation (the "Company"), hereby promises to pay to Thermo
Electron Corporation (hereinafter referred to as the "Payee"), or
registered assigns, on May 13, 1997, as described below, the
principal sum of thirty-five million dollars ($35,000,000) or
such part thereof as then remains unpaid, to pay interest from
the date hereof on the whole amount of said principal sum
remaining from time to time unpaid at a rate per annum equal to
the rate of the Commercial Paper Composite Rate as reported by
Merrill Lynch Capital Markets, as an average of the last five
business days of the fiscal quarter, plus twenty-five (25) basis
points, such interest to be payable in arrears on the first day
of each fiscal quarter of the Company during the term set forth
herein, until the whole amount of the principal hereof remaining
unpaid shall become due and payable, and to pay interest on all
overdue principal and interest at a rate per annum equal to the
rate of interest announced from time to time by The First
National Bank of Boston at its head office in Boston,
Massachusetts as its "base rate" plus one percent (1%).
Principal and all accrued but unpaid interest shall be repaid on
May 13, 1997. Principal and interest shall be payable in lawful
money of the United States of America, in immediately available
funds, at the principal office of the Payee or at such other
place as the legal holder may designate from time to time in
writing to the Company. Interest shall be computed on an actual
360-day basis.
This Note may be prepaid at any time or from time to time,
in whole or in part, without any premium or penalty. All
prepayments shall be applied first to accrued interest and then
to principal.
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<PAGE>
The then unpaid principal amount of, and interest
outstanding on, this Note shall be and become immediately due and
payable without notice or demand, at the option of the holder
hereof, upon the occurrence of any of the following events:
(a) the failure of the Company to pay any amount due
hereunder within ten (10) days of the date when due;
(b) any representation, warranty or statement made or
furnished to the Payee by the Company in connection with
this Note or the transaction from which it arises shall
prove to have been false or misleading in any material
respect as of the date when made or furnished;
(c) the failure of the Company to pay its debts as
they become due, the insolvency of the Company, the filing
by or against the Company of any petition under the U.S.
Bankruptcy Code (or the filing of any similar petition under
the insolvency law of any jurisdiction), or the making by
the Company of an assignment or trust mortgage for the
benefit of creditors or the appointment of a receiver,
custodian or similar agent with respect to, or the taking by
any such person of possession of, any property of the
Company;
(d) the sale by the Company of all or substantially
all of its assets;
(e) the merger or consolidation of the Company with or
into any other corporation in a transaction in which the
Company is not the surviving entity;
(f) the issuance of any writ of attachment, by trustee
process or otherwise, or any restraining order or injunction
not removed, repealed or dismissed within thirty (30) days
of issuance, against or affecting the person or property of
the Company or any liability or obligation of the Company to
the holder hereof; and
(g) the suspension of the transaction of the usual
business of the Company.
Upon surrender of this Note for transfer or exchange, a new
Note or new Notes of the same tenor dated the date to which
interest has been paid on the surrendered Note and in an
aggregate principal amount equal to the unpaid principal amount
of the Note so surrendered will be issued to, and registered in
the name of, the transferee or transferees. The Company may
treat the person in whose name this Note is registered as the
owner hereof for the purpose of receiving payment and for all
other purposes.
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In case any payment herein provided for shall not be paid
when due, the Company further promises to pay all cost of
collection, including all reasonable attorneys' fees.
No delay or omission on the part of the Payee in exercising
any right hereunder shall operate as a waiver of such right or of
any other right of the Payee, nor shall any delay, omission or
waiver on any one occasion be deemed a bar to or waiver of the
same or any other right on any future occasion. The Company
hereby waives presentment, demand, notice of prepayment, protest
and all other demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of this
Note. The undersigned hereby assents to any indulgence and any
extension of time for payment of any indebtedness evidenced
hereby granted or permitted by the Payee.
This Note shall be governed by and construed in accordance
with, the laws of the Commonwealth of Massachusetts and shall
have the effect of a sealed instrument.
THERMO PROCESS SYSTEMS INC.
By: John P. Appleton
--------------------
John P. Appleton
President and Chief
Executive Officer
[Corporate Seal]
Attest:
Sandra L. Lambert
---------------------
Sandra L. Lambert
Secretary
AA951380020
