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):
December 14, 1999
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THERMOLASE CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 1-13104 06-1360302
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification Number)
incorporation or
organization)
2055-C Luna Road
Carrollton, Texas 75006
(Address of principal executive offices) (Zip Code)
(781) 622-1000
(Registrant's telephone number
including area code)
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This Form 8-K contains forward-looking statements that involve a number of
risks and uncertainties. Important factors that could cause actual results to
differ materially from those indicated by such forward-looking statements are
set forth under the heading "Forward-looking Statements" in Exhibit 13 to
ThermoLase Corporation's Annual Report on Form 10-K for the year ended October
3, 1998. These include risks and uncertainties relating to: recent operating
losses of the Registrant; difficulty in retaining qualified management;
potential for customer claims and insurance; need to comply with FDA
regulations; compliance with state and foreign regulations; intense competition;
and the potential impact of the year 2000 on processing date-sensitive
information.
Item 5. Other Events
On December 17, 1999, the Registrant issued a press release stating that
it has entered into a definitive agreement and plan of merger with its ultimate
parent corporation, Thermo Electron Corporation ("Thermo Electron"), under which
Thermo Electron would acquire all of the outstanding common stock, $.01 par
value per share (the "Common Stock"), held by the stockholders of the Registrant
other than Thermo Electron and its affiliates in exchange for shares of Thermo
Electron's common stock (the "TMO Common Stock"). The Registrant's board of
directors approved the merger agreement based on a recommendation of its special
committee, which was charged with representing the interests of the Registrant's
public shareholders.
Under the agreement, the number of shares of TMO Common Stock to be issued
to the Registrant's public shareholders will be determined at the completion of
the merger (the "effective date"), as described below.
o If the average closing price of TMO Common Stock is between $11.925 and
$17.887 for the 20 trading days prior to the effective date of the merger,
a preliminary exchange ratio of 0.158 shares of TMO Common Stock for each
share of Common Stock would be adjusted on the effective date by
multiplying the 0.158 by a fraction of which the numerator would be
$14.906 (the average per-share closing price of TMO Common Stock for the
20 trading days ended December 13, 1999), and of which the denominator
would be the average per-share closing price of TMO Common Stock for the
20 trading days ending on the day before the effective date.
o If the average closing price of TMO Common Stock for the 20 trading days
prior to the effective date is below $11.925, the exchange ratio would be
fixed at 0.198 shares of TMO Common Stock per share of Common Stock.
o If the average closing price of TMO Common Stock for the 20 trading days
prior to the effective date is above $17.887, the exchange ratio would be
fixed at 0.132 shares of TMO Common Stock per share of Common Stock.
In addition, under the agreement, units of the Registrant (currently
consisting of one share of Common Stock coupled with the right to have the
Registrant redeem that share for $20.25 in April 2001) would be modified so
that, following the merger, each unit would consist of a fractional share of TMO
Common Stock, (in an amount determined using the exchange ratio), which would be
redeemable in April 2001 for $20.25. The cash value of the redemption right
would remain constant before and after the merger.
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Any shares of TMO Common Stock issued pursuant to the merger agreement
would be offered only by means of a prospectus.
The Registrant expects that the necessary filings with the Securities and
Exchange Commission (the "SEC") will be made shortly, and that proxy materials
for a special meeting will be mailed to stockholders of the Registrant promptly
after completion of SEC review. The completion of this transaction is subject to
certain customary conditions, including completion of review by the SEC of the
registration statement regarding the proposed transaction. A copy of the merger
agreement is filed as an exhibit hereto. Thermo Electron, which owns
approximately 13.91% of the Common Stock, and ThermoTrex Corporation, which owns
approximately 71.06% of the Common Stock, intend to vote all of their shares of
Common Stock in favor of approval of the merger agreement and, therefore,
stockholder approval is assured. The transaction is expected to close during the
second calendar quarter of 2000. Following the merger, the shares of Common
Stock would cease to be publicly traded.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a) Financial Statements of Business Acquired: not applicable.
(b) Pro Forma Financial Information: not applicable.
(c) Exhibits:
2.1 Agreement and Plan of Merger dated as of December 14,
1999 by and among Thermo Electron Corporation, ThermoLase
Acquisition Corporation and ThermoLase Corporation.
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SIGNATURE
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 17th day of December, 1999.
THERMOLASE CORPORATION
By: /s/ Theo Melas-Kyriazi
---------------------------------
Theo Melas-Kyriazi
Chief Financial Officer
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
THERMO ELECTRON CORPORATION
THERMOLASE ACQUISITION CORPORATION
AND
THERMOLASE CORPORATION
DATED AS OF DECEMBER 14, 1999
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Agreement") dated as of December
14, 1999 is by and among Thermo Electron Corporation ("Thermo Electron"), a
Delaware corporation, ThermoLase Acquisition Corporation ("Merger Sub"), a
Delaware corporation and a wholly-owned subsidiary of ThermoTrex Acquisition
Corporation which in turn is a wholly owned subsidiary of Thermo Electron, and
ThermoLase Corporation (the "Company"), a Delaware corporation.
RECITALS
A. Thermo Electron owns approximately 13.91%, and ThermoTrex Corporation
("ThermoTrex"), a Delaware corporation and majority owned subsidiary of Thermo
Electron, owns approximately 71.06%, of the outstanding shares of common stock,
par value $.01 per share, of the Company (the "Company Common Stock"), and
Thermo Electron desires to acquire all of the remaining outstanding shares of
Company Common Stock.
B. Thermo Electron has formed the Merger Sub as an indirect subsidiary
with the intent of causing it to merge with the Company, as described in this
Agreement.
C. Upon the terms and subject to the conditions of this Agreement and in
accordance with the Delaware General Corporation Law (the "DGCL"), Thermo
Electron and the Company will enter into a business combination transaction
pursuant to which Merger Sub will merge with and into the Company (the
"Merger").
D. The Board of Directors of Thermo Electron (i) has determined that the
Merger is consistent with and in furtherance of the long-term business strategy
of Thermo Electron and is in the best interests of Thermo Electron and its
stockholders, and (ii) has approved this Agreement, the Merger and the other
transactions contemplated by this Agreement.
E. The Board of Directors of the Company, on the recommendation of a
special committee of the Board of Directors (the "Special Committee"),
consisting of two directors of the Company who are not employees, officers or
directors of Thermo Electron and its subsidiaries (other than the Company), and
who are not officers or employees of the Company, (i) has determined that this
Agreement, including the Exchange Ratio (as defined below), and the transactions
contemplated by this Agreement, are fair to the stockholders of the Company
(other than Thermo Electron and ThermoTrex) from a financial point of view, (ii)
has approved and declared the advisability of this Agreement, the Merger and the
other transactions contemplated by this Agreement and (iii) has resolved to
recommend the approval and adoption of this Agreement by the stockholders of the
Company.
F. Stonebridge Associates LLC (the "Financial Advisor") has delivered to
the Special Committee, for its consideration and for inclusion in its entirety
in the Proxy Statement to be delivered to the stockholders of the Company
relating to the Merger, its written opinion that, subject to the various
assumptions and limitations set forth therein, as of the date of such opinion
the consideration to be received by the stockholders of the Company (other than
Thermo Electron and ThermoTrex) is fair to such stockholders from a financial
point of view.
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G. Thermo Electron, the Company and Merger Sub desire to make certain
representations and warranties and other agreements in connection with the
Merger.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
ARTICLE I
THE MERGER
1.1. The Merger. At the Effective Time (as defined in Section 1.2) and
subject to and upon the terms and conditions of this Agreement and the
applicable provisions of the DGCL, Merger Sub shall be merged with and into the
Company, the separate corporate existence of Merger Sub shall cease and the
Company shall continue as the surviving corporation. The Company as the
surviving corporation after the Merger is hereinafter sometimes referred to as
the "Surviving Corporation."
1.2. Effective Time; Closing. Subject to the provisions of this Agreement,
the Surviving Corporation shall cause the Merger to be consummated by filing a
Certificate of Merger (the "Certificate of Merger") with the Secretary of State
of the State of Delaware in accordance with the relevant provisions of the DGCL
(the time of such filing, or such later time as may be agreed in writing by the
parties and specified in the Certificate of Merger, being the "Effective Time"
and the date on which the Effective Time occurs being the "Effective Date") as
early as practicable on the Closing Date (as herein defined). Unless the context
otherwise requires, the term "Agreement" as used herein refers collectively to
this Agreement and the Certificate of Merger. The closing of the Merger (the
"Closing") shall take place at the executive offices of Thermo Electron at a
time and date to be specified by the parties, which shall be no later than the
tenth business day after the satisfaction or waiver of the conditions set forth
in Article VI, or at such other time, date and location as the parties hereto
agree in writing (the "Closing Date"). At the Closing, (i) the Company shall
deliver to Thermo Electron the various certificates and instruments required
under Article VI, (ii) Thermo Electron and Merger Sub shall deliver to the
Company the various certificates and instruments required under Article VI and
(iii) the Company shall execute and file the Certificate of Merger with the
Secretary of State of the State of Delaware, in accordance with the applicable
provisions of the DGCL.
1.3. Effect of the Merger. At the Effective Time, the effect of the Merger
shall be as provided in this Agreement and the applicable provisions of the
DGCL. Without limiting the generality of the foregoing, and subject thereto, at
the Effective Time all the property, rights, privileges, powers and franchises
of the Company and Merger Sub shall vest in the Surviving Corporation, and all
debts, liabilities and duties of the Company and Merger Sub shall become the
debts, liabilities and duties of the Surviving Corporation.
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1.4. Certificate of Incorporation; Bylaws.
(a) Subject to the requirements of Section 5.10 hereof, at the
Effective Time, the Certificate of Incorporation of Merger Sub, as in effect
immediately prior to the Effective Time, shall be the Certificate of
Incorporation of the Surviving Corporation until thereafter amended as provided
by law and such Certificate of Incorporation.
(b) Subject to the requirements of Section 5.10 hereof, the Bylaws
of Merger Sub, as in effect immediately prior to the Effective Time, shall be,
at the Effective Time, the Bylaws of the Surviving Corporation until thereafter
amended.
1.5. Directors and Officers. The directors of the Company immediately
prior to the Effective Time shall be the initial directors of the Surviving
Corporation, to serve until their respective successors are duly elected or
appointed and qualified. The officers of the Company immediately prior to the
Effective Time shall be the officers of the Surviving Corporation, to serve
until their successors are duly elected or appointed and qualified.
1.6. Effect on Capital Stock. At the Effective Time, by virtue of the
Merger and without any action on the part of Merger Sub, the Company or the
holders of any of the following securities:
(a) Exchange of the Company Common Stock and Units.
(i) Subject to the balance of this Section 1.6 and
Section 1.11 hereof, each issued and outstanding
share of Company Common Stock (other than shares to
be canceled in accordance with Section 1.6(e), and
other than shares of Company Common Stock coupled
with the right to have the Company redeem such share
of Common Stock for $20.25 per share between April 3,
2001 and April 30, 2001 (the "Units")) will be
automatically converted into the right to receive
that number of validly issued, fully paid and
nonassessable shares of the common stock, $1.00 par
value, of Thermo Electron (the "Thermo Common
Stock"), equal to the Exchange Ratio, determined as
set forth in Section 1.6(f). Subject to Section
1.6(a)(ii) below, as of the Effective Time, all
shares of Company Common Stock shall no longer be
outstanding and shall be automatically canceled and
retired and shall cease to exist, and each holder of
a certificate representing any such shares of Company
Common Stock shall cease to have any rights with
respect thereto, except the right to receive the
Stock Merger Consideration (as defined in Section
1.7(b)) upon surrender of the certificate
representing such shares of Company Common Stock in
the manner provided in Section 1.7 (or in the case of
a lost, stolen or destroyed certificate, upon
delivery of an affidavit (and bond, if required) in
the manner provided in Section 1.9).
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(ii) At the Effective Time, each issued and outstanding
Unit will continue to have, and be subject to, the
same terms and conditions applicable to the Units
immediately prior to the Effective Time, except that
each share of Company Common Stock included as part
of the Unit will be automatically converted into that
number of validly issued, fully paid and
nonassessable shares of Thermo Common Stock equal to
one share times the Exchange Ratio, determined as set
forth in Section 1.6(f), and except that the
redemption right associated with the Thermo Common
Stock issued to the Unit holder shall be the right to
have Thermo Electron redeem such Thermo Common Stock
for cash in an amount per whole share of Thermo
Common Stock included in such Unit or Units equal to
$20.25 divided by the Exchange Ratio. Each Unit of
Thermo Common Stock ("Thermo Units") shall be
comprised of the fractional share of Thermo Common
Stock determined as set forth in Section 1.6(f),
coupled with the redemption right described above.
Holders of fractional shares of Thermo Common Stock
included in the Thermo Units shall have all of the
rights of holders of whole shares of Thermo Common
Stock except that the rights associated with
fractional shares shall be proportional based on the
fraction of a share owned by such holders, including
without limitation with respect to voting rights,
dividends, and distributions with respect to such
fractional shares. As of the Effective Time, all
Units shall no longer be outstanding and shall be
automatically canceled and retired and shall cease to
exist, and each holder of a certificate representing
any Units shall cease to have any rights with respect
thereto, except the right to receive the Unit Merger
Consideration (as defined in Section 1.7(b)) upon
surrender of the certificate representing such Units
in the manner provided in Section 1.7 (or in the case
of a lost, stolen or destroyed certificate, upon
delivery of an affidavit (and bond, if required) in
the manner provided in Section 1.9).
(b) Stock Option Plans. All options to purchase Company Common Stock
outstanding immediately prior to the Effective Time under stock option plans
maintained by the Company (the "Company Stock Option Plans"), shall be converted
into options to purchase Thermo Common Stock in accordance with Section 5.8
hereof.
(c) Convertible Debentures. All Company convertible debentures (the
"Convertible Debentures") issued pursuant to a Fiscal Agency Agreement dated as
of August 12, 1997 by and among the Company, Thermo Electron, and Bankers Trust
Company, as Fiscal Agent, outstanding at the Effective Time shall remain the
Convertible Debentures of the Company, provided however, that in lieu of Company
Common Stock being issuable upon conversion of such Convertible Debentures,
after the Effective Time, Thermo Common Stock shall be issuable upon conversion
of such Convertible Debentures in accordance with the terms of the Fiscal Agency
Agreement. At the Effective Time, the price at which Convertible Debentures then
outstanding will be convertible into Thermo Common Stock shall be adjusted in
accordance with the terms of the Fiscal Agency Agreement.
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(d) Capital Stock of Merger Sub. At the Effective Time, each share
of common stock, par value $.01 per share, of Merger Sub issued and outstanding
immediately prior to the Effective Time shall be converted into and become one
validly issued, fully paid and non-assessable share of common stock, par value
$.01 per share, of the Surviving Corporation.
(e) Treasury Stock; Stock Held By Thermo Electron and ThermoTrex.
Notwithstanding any other provision of this Agreement, each share of Company
Common Stock issued and outstanding and owned by Thermo Electron, ThermoTrex or
any wholly-owned subsidiary of Thermo Electron, together with all shares owned
by the Company or any wholly-owned subsidiary of the Company immediately prior
to the Effective Time shall cease to be outstanding, and shall automatically be
cancelled and retired without payment of any consideration therefor, cash or
otherwise, and cease to exist.
(f) Determination and Adjustment of Exchange Ratio. The Exchange
Ratio shall be determined as follows:
The "Exchange Ratio" means the product obtained by multiplying (x)
.158 by (y) the quotient obtained by dividing $14.906 by the Average Closing
Price and rounding to the nearest 1/10,000; provided, however that in the event
that the Average Closing Price is less than $11.925, or greater than $17.887,
then the Exchange Ratio shall be set at .198 and .132, respectively. The
"Average Closing Price" shall be an amount equal to the average per share
closing price of Thermo Common Stock, as reported on the consolidated
transaction reporting system for the 20 trading days ending with the trading day
immediately preceding the Effective Date.
The Exchange Ratio shall be adjusted to reflect fully the effect of
any stock split, reverse stock split, stock dividend (including any dividend or
distribution of securities convertible into, or exercisable or exchangeable for,
Company Common Stock or Thermo Common Stock, as the case may be),
recapitalization or other like change without receipt of consideration with
respect to either the Company Common Stock or the Thermo Common Stock occurring
on or after the date hereof and prior to the Effective Time.
1.7. Surrender of Certificates.
(a) Exchange Agent. Prior to the Effective Time, Thermo Electron
shall authorize Boston Equiserve to act as the exchange agent (the "Exchange
Agent") in the Merger. Immediately following the Effective Time, Thermo Electron
shall deposit with the Exchange Agent, for the benefit of the holders of shares
of Company Common Stock and Units, for exchange in accordance with the
provisions of this Article I, certificates representing the shares of Thermo
Common Stock and Thermo Units issuable pursuant to this Agreement in exchange
for certificates representing outstanding shares of Company Common Stock and
outstanding Units, and cash sufficient to make payments pursuant to Section 1.11
for fractional shares of Thermo Common Stock and fractional Thermo Units. The
Thermo Common Stock and Thermo Units into which Company Common Stock and Units
shall be converted pursuant to the Merger shall be deemed to have been issued at
the Effective Time.
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(b) Exchange Procedures. As soon as practicable after, and in no
event more than five business days after, the Effective Time, Thermo Electron
shall cause the Exchange Agent to mail to each holder of record (as of the
Effective Time) of a certificate (a "Certificate" or the "Certificates")
representing Company Common Stock or Units (i) a letter of transmittal (which
shall specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the Exchange
Agent and shall otherwise be in such form and have such other provisions as
Thermo Electron may reasonably specify and as are reasonably acceptable to the
Company) and (ii) instructions for effecting the exchange of the Certificates
for certificates representing shares of Thermo Common Stock or Thermo Units, as
the case may be, as provided herein. Upon surrender of a Certificate for
cancellation to the Exchange Agent, together with such letter of transmittal
duly completed and validly executed in accordance with the instructions thereto,
the holders of Company Common Stock (excluding Company Common Stock included in
any Units) shall be entitled to receive in exchange for their Certificates, (x)
subject to Section 1.11, a certificate representing shares of Thermo Common
Stock equal to the Exchange Ratio multiplied by the number of shares of Company
Common Stock represented by such Certificate, (y) any dividends or other
distributions to which such holder is entitled pursuant to Section 1.10 hereof,
and (z) a check issued pursuant to Section 1.11 hereof for any fractional share
of Thermo Common Stock (the consideration specified in clauses (x), (y) and (z)
above are referred to herein, collectively, as the "Stock Merger
Consideration"), and the Certificate so surrendered shall forthwith be
cancelled; and holders of Units shall be entitled to receive in exchange for
their Certificates, (I) subject to Section 1.11, Thermo Units in an amount equal
to the Exchange Ratio multiplied by the number of Units represented by such
Certificate, and (II) any dividends or other distributions to which such holder
is entitled pursuant to Section 1.10 hereof. (the consideration specified in
clauses (I) and (II) above are referred to herein, collectively, as the "Unit
Merger Consideration"), and the Certificate so surrendered shall forthwith be
cancelled. The term "Merger Consideration" means, collectively, the Stock Merger
Consideration and the Unit Merger Consideration. In the event of a transfer of
ownership of shares of Company Common Stock or Units which is not registered in
the transfer records of the Company as of the Effective Time, the Stock Merger
Consideration or the Unit Merger Consideration, as the case may be, may be
delivered in accordance with this Article I to a transferee if the Certificate
evidencing such shares or Units is presented to the Exchange Agent, accompanied
by all documents required by law to evidence and effect such transfer pursuant
to this Section. Until so surrendered, each outstanding Certificate will be
deemed from and after the Effective Time, for all corporate purposes, to
evidence only the right to receive the Stock Merger Consideration or the Unit
Merger Consideration, as the case may be.
(c) Transfers of Ownership. If payment of the Merger Consideration
is to be made to any person other than the person in whose name the Certificate
surrendered in exchange therefor is registered, it will be a condition of such
payment that the Certificate so surrendered will be properly endorsed and
otherwise in proper form for transfer and that the person requesting such
payment will have paid to Thermo Electron or any agent designated by it any
transfer or other taxes required by reason of payment to a person other than the
registered holder of the Certificate surrendered, or established to the
reasonable satisfaction of Thermo Electron or any agent designated by it that
such tax has been paid or is not payable.
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(d) No Liability. Notwithstanding anything to the contrary in this
Section 1.7, neither the Exchange Agent, Thermo Electron, the Surviving
Corporation nor any party hereto shall be liable to a holder of shares of
Company Common Stock or Units for any amount properly paid to a public official
pursuant to any applicable abandoned property, escheat or similar law.
(e) Responsibility; Term. During the term of its engagement, the
Exchange Agent shall be responsible for delivering certificates representing
Thermo Common Stock or Thermo Units and the other Merger Consideration to the
holders of properly endorsed Certificates that are returned to the Exchange
Agent. Promptly following the date that is six months after the Effective Date,
the Exchange Agent shall, upon request by Thermo Electron, deliver to Thermo
Electron all cash, cancelled Certificates, certificates representing shares of
Thermo Common Stock and Thermo Units and other documents in its possession
relating to the transactions described in this Agreement, and the Exchange
Agent's duties shall terminate. Thereafter, each holder of a Certificate
formerly representing shares of Company Common Stock or Units may surrender such
Certificate to Thermo Electron and (subject to applicable abandoned property,
escheat and similar laws) receive in exchange therefor the Merger Consideration
represented by such Certificate, without any interest thereon.
1.8. No Further Ownership Rights in Company Common Stock or Units. The
Thermo Common Stock or Thermo Units, as the case may be, and cash, if any,
delivered to the holders of Company Common Stock or Units upon the surrender of
shares of Company Common Stock or Units in accordance with the terms hereof
shall be deemed to have been delivered in full satisfaction of all rights
pertaining to such shares of Company Common Stock or Units.
1.9. Lost, Stolen or Destroyed Certificates. In the event any Certificates
shall have been lost, stolen or destroyed, the Exchange Agent shall deliver the
certificates representing Thermo Common Stock or Thermo Units, as the case may
be, and the other Merger Consideration in respect of such lost, stolen or
destroyed Certificates, upon the making of an affidavit of that fact by the
holder thereof; provided, however, that, as a condition precedent to the payment
thereof, the owner of such lost, stolen or destroyed Certificates shall deliver
a bond in such sum as Thermo Electron or the Exchange Agent may reasonably
direct as indemnity against any claim that may be made against Thermo Electron
or the Exchange Agent with respect to the Certificates alleged to have been
lost, stolen or destroyed, unless Thermo Electron waives such requirement in
writing.
1.10. Dividends. No dividends or other distributions that are payable to
the holders of record of Thermo Common Stock or Thermo Units as of a date on or
after the Effective Time shall be paid to the holders of Company Common Stock or
Units entitled by reason of the Merger to receive Thermo Common Stock or Thermo
Units, as the case may be, until such holders surrender their Certificates in
accordance with Section 1.7(b) or provide an affidavit and indemnity in
accordance with Section 1.9. Upon such surrender, the Exchange Agent or Thermo
Electron (in the event that the Exchange Agent's term has expired), shall pay or
deliver to the persons in whose name the certificates representing such Thermo
Common Stock or Thermo Units, as the case may be, are issued any dividends or
other distributions that are payable to the holders of record of Thermo Common
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Stock or Thermo Units as of a date on or after the Effective Time and which were
paid or delivered between the Effective Time and the time of such surrender;
provided that no such person shall be entitled to receive any interest on such
dividends or other distributions (except as expressly provided in any securities
or other property that may be so dividended or distributed).
1.11. Fractional Shares. No certificates or scrip representing fractional
shares of Thermo Common Stock shall be issued to holders of Company Common Stock
upon the surrender for exchange of Certificates, and such holders shall not be
entitled to any voting rights, rights to receive any dividends or distributions
or other rights as a stockholder of Thermo Electron with respect to any
fractional shares of Thermo Common Stock that would otherwise be issued to such
holders. In lieu of any fractional shares of Thermo Common Stock that would
otherwise be issued, each holder of Company Common Stock that would have been
entitled to receive a fractional share of Thermo Common Stock shall, upon proper
surrender of such person's Certificates, receive a cash payment (rounded up to
the nearest cent) equal to the closing price per share of Thermo Common Stock,
as reported in the consolidated transaction reporting system on the trading day
immediately preceding the Closing Date, multiplied by the fraction of a share
that such holder would otherwise be entitled to receive. Fractional shares of
Thermo Common Stock may be issued to holders of Units.
1.12. Closing of Transfer Books. At the Effective Time, the stock transfer
books of the Company shall be closed and no transfer of Company Common Stock or
Units shall thereafter be made. If, after the Effective Time, Certificates are
presented to Thermo Electron, they shall be canceled and exchanged for Merger
Consideration in accordance with Article I.
1.13. Taking of Necessary Action; Further Action. If, at any time after
the Effective Time, any further action is necessary or desirable to carry out
the purposes of this Agreement and to vest the Surviving Corporation with full
right, title and possession to all assets, property, rights, privileges, powers
and franchises of the Company and Merger Sub, the officers and directors of the
Surviving Corporation are fully authorized in the name of the Company and Merger
Sub or otherwise to take, and will take, all such lawful and necessary action,
so long as such action is consistent with this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Thermo Electron and Merger Sub as
follows:
2.1. Organization of the Company. The Company and each of its subsidiaries
is a corporation or other legal entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization, has the corporate or similar power to own, lease and operate its
property and to carry on its business as now being conducted and as proposed by
the Company to be conducted, and is duly qualified to do business and in good
standing as a foreign corporation or other legal entity in each jurisdiction in
which the failure to be so qualified would have a Material Adverse Effect on the
Company. In this Agreement, the term "Material Adverse Effect" used in reference
to the Company means any event, change or effect, that is or is reasonably
likely to be, individually or in the aggregate with other events, changes or
effects, materially adverse to the financial condition, assets, liabilities,
results of operations or business of the Company and its subsidiaries, taken as
a whole.
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2.2. Company Capital Structure. The authorized capital stock of the
Company consists of 100,000,000 shares of Common Stock, par value $.01 per
share, of which there were 39,347,996 shares issued and outstanding as of
October 31, 1999 (including 2,000,000 shares that are included in the
outstanding Units), and 1,481,136 shares in treasury. All outstanding shares of
Company Common Stock are duly authorized, validly issued, fully paid and
non-assessable and are not subject to preemptive rights created by statute, the
Certificate of Incorporation or Bylaws of the Company or any agreement or
document to which the Company is a party or by which it is bound. As of October
27, 1999, an aggregate of 2,985,320 shares of Company Common Stock, net of
exercises, were reserved for issuance to employees, consultants and non-employee
directors pursuant to Company Stock Option Plans, under which options were
outstanding for an aggregate of 1,642,283 shares as of such date. As of October
27, 1999, 6,614,897 shares of Company Common Stock were reserved for issuance
upon the conversion of the Convertible Debentures and 100,000 shares of Company
Common Stock were reserved for issuance under the Company Directors Deferred
Compensation Plan. All shares of Company Common Stock subject to issuance as
aforesaid, upon issuance on the terms and conditions specified in the
instruments pursuant to which they are issuable, would be duly authorized,
validly issued, fully paid and non-assessable.
2.3. Authority.
(a) The Company has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company, subject only to the adoption of
this Agreement by the Company's stockholders by the affirmative vote of the
holders of a majority of the outstanding shares of Company Common Stock (the
"Company Vote") and the filing and recording of the Certificate of Merger
pursuant to the DGCL. Under the DGCL, the Company's stockholders may adopt this
Agreement by vote of the holders of a majority of the outstanding shares of
Company Common Stock. This Agreement has been duly executed and delivered by the
Company, and assuming the due authorization, execution and delivery by Thermo
Electron and Merger Sub, constitutes the valid and binding obligation of the
Company, enforceable in accordance with its terms. The execution and delivery of
this Agreement by the Company do not, and the performance of this Agreement by
the Company will not, (i) conflict with or violate the Certificate of
Incorporation or Bylaws of the Company or (ii) subject to obtaining the Company
Vote and compliance with the requirements set forth in Section 2.3(b) below,
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to the Company or any of its material subsidiaries or by which its or
their respective properties is bound, except, with respect to clause (ii), for
any such conflicts, violations, defaults or other occurrences that would not
have a Material Adverse Effect on the Company or the Surviving Corporation.
(b) No consent, approval, order or authorization of, or
registration, declaration or filing with any court, administrative agency or
commission or other governmental or regulatory body or authority or
instrumentality ("Governmental Entity") is required by or with respect to the
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Company in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby, except for (i) the filing
of the Certificate of Merger with the Secretary of State of Delaware, (ii) the
filing by the Company and Thermo Electron of the Proxy Statement and the
Registration Statement (as defined in Section 5.1), respectively, with the U.S.
Securities and Exchange Commission ("SEC") in accordance with the Securities Act
of 1933, as amended (the "Securities Act") and the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and (iii) such other consents, approvals,
orders, authorizations, registrations, declarations and filings as may be
required under applicable federal and state securities laws.
2.4. Board Approval. The Board of Directors of the Company, upon
recommendation of the Special Committee that this Agreement, including the
Exchange Ratio, is fair to, and in the best interests of, the Company and its
stockholders (other than Thermo Electron and ThermoTrex), has, as of the date of
this Agreement, unanimously (i) adopted a resolution approving this Agreement
and declaring its advisability, (ii) determined that the Merger is fair to the
stockholders of the Company and in the best interests of the Company, and (iii)
determined to recommend that the stockholders of the Company vote to adopt this
Agreement.
2.5. Fairness Opinion. The Special Committee has received an opinion from
the Financial Advisor dated December 14, 1999 that, as of such date, the
consideration to be received by the Company's stockholders in the Merger is
fair, from a financial point of view, to the Company's stockholders other than
Thermo Electron, ThermoTrex and their affiliates (other than the Company).
2.6 Registration Statement, Proxy Statement/Prospectus. The information
supplied by the Company for inclusion in the Registration Statement (as defined
in Section 5.1(a)) (including any information incorporated by reference in the
Registration Statement from other filings made by the Company with the SEC)
shall not at the time the Registration Statement becomes effective under the
Securities Act, contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein not
misleading in light of the circumstances under which they were made. Other than
with respect to the information supplied by Thermo Electron or the Merger Sub,
the Proxy Statement (as defined in Section 5.1(a)) shall not, on the date the
Proxy Statement is first mailed to stockholders, at the time of the Company
Stockholders' Meeting (as defined in Section 5.1(b)) or at the Effective Time,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not false or
misleading. The Proxy Statement will comply (other than with respect to
information relating to Thermo Electron and/or Merger Sub) as to form in all
material respects with the provisions of the Exchange Act and the rules and
regulations thereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THERMO ELECTRON AND MERGER SUB
Thermo Electron and Merger Sub, jointly and severally, represent and
warrant to the Company as follows:
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3.1. Organization. Thermo Electron is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and Merger Sub is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, each has the corporate power
to own, lease and operate its property and to carry on its business as now being
conducted and as proposed to be conducted, and is duly qualified to do business
and in good standing as a foreign corporation in each jurisdiction in which the
failure to be so qualified would have a Material Adverse Effect on Thermo
Electron. In this Agreement, the term "Material Adverse Effect" used in
reference to Thermo Electron means any event, change or effect, that is or is
reasonably likely to be, individually or in the aggregate with other events,
changes or effects, materially adverse to the financial condition, assets,
liabilities, results of operations or business of Thermo Electron and its
subsidiaries, taken as a whole.
3.2. Authority.
(a) Each of Thermo Electron and Merger Sub has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Thermo Electron and
Merger Sub, subject only to the filing and recording of the Certificate of
Merger pursuant to the DGCL. This Agreement has been duly executed and delivered
by each of Thermo Electron and Merger Sub and, assuming the due authorization,
execution and delivery of this Agreement by the Company, this Agreement
constitutes the valid and binding obligation of each of Thermo Electron and
Merger Sub, enforceable in accordance with its terms. The execution and delivery
of this Agreement by each of Thermo Electron and Merger Sub do not, and the
performance of this Agreement by each of Thermo Electron and Merger Sub will
not, (i) conflict with or violate the Certificate of Incorporation or Bylaws of
Thermo Electron or the Certificate of Incorporation or Bylaws of Merger Sub or
of any material subsidiary, direct or indirect, of Thermo Electron (including
Merger Sub, but excluding the Company and its subsidiaries) (each, a "Material
Thermo Subsidiary"), (ii) subject to compliance with the requirements set forth
in Section 3.2(c) below, conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to Thermo Electron or any Material Thermo
Subsidiaries or by which its or any of their respective properties is bound or
affected, or (iii) result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or
impair Thermo Electron's rights or alter the rights or obligations of any third
party under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the properties or assets of Thermo Electron or any
Material Thermo Subsidiaries pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which Thermo Electron or any Material Thermo Subsidiaries is a
party or by which Thermo Electron or any Material Thermo Subsidiaries or its or
any of their respective properties are bound or affected, except, with respect
to clause (iii), for any such conflicts, violations, defaults or other
occurrences that would not have a Material Adverse Effect on Thermo Electron.
(b) All shares of Thermo Common Stock and Thermo Units issuable in
accordance with this Agreement, and shares of Thermo Common Stock which will be
subject to issuance pursuant to Company Stock Option Plans or the Convertible
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Debentures will, upon issuance, be duly authorized, validly issued, fully paid
and nonassessable and not subject to preemptive rights created by statute, the
Certificate of Incorporation or Bylaws of Thermo Electron or Merger Sub or any
other agreement or document to which either is a party or by which either is
bound.
(c) No consent, approval, order or authorization of, or registration,
declaration or filing with any Governmental Entity is required by or with
respect to Thermo Electron or Merger Sub in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby, except for (i) the filing of the Certificate of Merger with the
Secretary of State of Delaware, (ii) the filing of the Proxy Statement and the
Registration Statement (as defined in Section 5.1) with the SEC in accordance
with the Securities Act and the Exchange Act, and (iii) such other consents,
approvals, orders, authorizations, registrations, declarations and filings as
may be required under applicable federal and state securities laws.
3.3 Capitalization.
(a) The authorized capital stock of Thermo Electron consists of
350,000,000 shares of Thermo Common Stock, par value $1.00 per share, of which
there were 158,236,781 shares issued and outstanding as of October 2, 1999, and
9,011,451 shares in treasury as of October 2, 1999, and 50,000 shares of
preferred stock, $100 par value per share, of which 40,000 shares have been
designated Series B Junior Participating Preferred Stock, none of which are
issued and outstanding. All of the outstanding shares of Thermo Common Stock are
duly authorized, validly issued, fully paid and non-assessable and are not
subject to preemptive rights created by statute, the Certificate of
Incorporation or Bylaws of Thermo Electron or any agreement or document to which
Thermo Electron or any subsidiary of Thermo Electron is a party or by which it
is bound. As of October 2, 1999, an aggregate of 15,653,373 shares of Thermo
Common Stock, net of exercises, were reserved for issuance to employees,
consultants and non-employee directors pursuant to stock option plans maintained
by Thermo Electron or any subsidiary of Thermo Electron, under which options are
outstanding for an aggregate of 11,912,116 shares. As of October 2, 1999, an
aggregate of 15,476,191 shares of Thermo Common Stock were reserved for issuance
upon the conversion of convertible debentures issued by Thermo Electron. All
shares of Thermo Common Stock subject to issuance as aforesaid, upon issuance on
the terms and conditions specified in the instruments pursuant to which they are
issuable, will be duly authorized, validly issued, fully paid and
non-assessable. There are no bonds, debentures, notes or other indebtedness of
Thermo Electron issued and outstanding which have rights to vote in the election
of directors of Thermo Electron. Except as described in the Thermo Reports (as
defined in Section 3.4) filed prior to the date of this Agreement, there are no
other material outstanding options, warrants, equity securities, subscriptions,
calls, rights, commitments or agreements of any character to which Thermo
Electron or any of its subsidiaries is a party or by which it is bound,
obligating Thermo Electron to issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares of capital stock or other equity securities
of Thermo Electron or obligating Thermo Electron to grant or enter into any such
option, warrant, equity security, call, right, commitment or agreement.
(b) Thermo Electron has also assumed the obligations of certain of its
subsidiaries under stock option plans which have been modified to provide that
option holders have the right to acquire shares of Thermo Electron common stock
on certain terms and conditions. The options to acquire additional shares of
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Thermo Common Stock assumed by Thermo Electron in connection with signed merger
agreements with its majority owned subsidiaries which options are not reflected
in the number of shares identified in Section 3.3(a) as reserved for issuance
pursuant to Thermo Electron Stock Option Plans, constitute less than one percent
of the issued and outstanding shares of Thermo Common Stock issued and
outstanding as of October 2, 1999. Since October 2, 1999, other than pursuant to
merger agreements with its majority owned subsidiaries, Thermo Electron has not
issued additional options, warrants, equity securities, subscriptions, calls,
rights, commitments or agreements obligating Thermo Electron to issue, deliver
or sell, or cause to be issued, delivered or sold, additional shares of capital
stock or other equity securities of Thermo Electron obligating Thermo Electron
to grant or enter into options, warrants, equity securities, calls, rights,
commitments or agreements.
(c) As of the date of this Agreement, no Stock Acquisition Date or other
event that would result in the occurrence of a Distribution Date has occurred
(as such terms are defined in the Rights Agreement dated January 19, 1996, as
amended, by and between Thermo Electron and BankBoston, N.A. (the "Rights
Agreement")), with respect to the rights to purchase a unit consisting of one
ten-thousandth of a share of Thermo Electron's Series B Junior Participating
Preferred Stock pursuant to the Rights Agreement.
3.4 Reports and Financial Statements. Thermo Electron has filed all
material forms, reports and documents required to be filed with the SEC since
January 1, 1997. Thermo Electron has made available to the Company complete and
accurate copies, as amended or supplemented, of (a) its Annual Report on Form
10-K for the fiscal year ended January 2, 1999 as filed with the SEC, and (b)
all other reports filed by Thermo Electron with the SEC under Sections 13 or 14
of the Exchange Act since January 2, 1999 (such reports are collectively
referred to herein as the "Thermo Reports"). Since October 2, 1999, there has
been no change in the business, financial condition or results of operations of
Thermo Electron that has resulted or is reasonably likely to result in a
Material Adverse Effect on Thermo Electron. As of their respective dates, the
Thermo Reports (i) complied in all material respects with the requirements of
the Exchange Act and the applicable rules of the SEC thereunder and (ii) did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
audited financial statements and unaudited interim financial statements of
Thermo Electron included in the Thermo Reports (in each case including the notes
thereto) (i) comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto, (ii) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
covered thereby (except as may be indicated therein or in the notes thereto, and
in the case of quarterly financial statements, as permitted by Form 10-Q under
the Exchange Act), (iii) fairly present, in all material respects, the
consolidated financial condition, results of operation and cash flows of Thermo
Electron as of the respective dates thereof and for the periods referred to
therein, and (iv) are consistent with the books and records of Thermo Electron.
There are no liabilities of Thermo Electron which are not disclosed in the
Thermo Reports which would be reasonably likely to have a Material Adverse
Effect on Thermo Electron.
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3.5 Information Provided to Financial Advisor. To the knowledge of Thermo
Electron, the information provided by Thermo Electron and the Company to the
Financial Advisor in connection with the Merger does not contain any untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. For purposes of the
foregoing sentence, any projections or forward-looking statements shall not be
deemed to be statements of material fact; however, the projections were prepared
in good faith and based on assumptions that were reasonable at the time such
projections were prepared, given the information known by management at such
time. Furthermore, it is recognized that such projections and forward-looking
statements do not constitute any warranty as to the future performance of Thermo
Electron or the Company and that actual results may vary from projected results.
3.6 Litigation. Except as discussed in the Thermo Reports, there are no
suits, actions, arbitrations, demands, claims or proceedings pending, or to the
knowledge of Thermo Electron, threatened against Thermo Electron or any
subsidiary of Thermo Electron which, individually or in the aggregate, are
reasonably likely to have a Material Adverse Effect on Thermo Electron.
3.7 Merger Sub. Since the date of its incorporation, Merger Sub has not
engaged in any activities other than in connection with or as contemplated by
this Agreement and has incurred no material liabilities or obligations other
than those arising under this Agreement.
3.8 Registration Statement; Proxy Statement/Prospectus. Other than with
respect to the information supplied by the Company, the Registration Statement
shall not, at the time the Registration Statement becomes effective under the
Securities Act, contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements included therein not
misleading. The information supplied by Thermo Electron for inclusion in the
Proxy Statement (including any information incorporated by reference in the
Proxy Statement from other filings made by Thermo Electron with the SEC) shall
not, on the date the Proxy Statement is first mailed to stockholders, at the
time of the Company Stockholders' Meeting or at the Effective Time, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not false or misleading.
The Proxy Statement will comply (with respect to information relating to Thermo
Electron) as to form in all material respects with the provisions of the
Exchange Act and the rules and regulations thereunder.
ARTICLE IV
CONDUCT PRIOR TO THE EFFECTIVE TIME
4.1. Conduct of Business by the Company. During the period from the date
of this Agreement and continuing until the earlier of the termination of this
Agreement pursuant to its terms or the Effective Time, the Company shall, except
for such actions which are contemplated by this Agreement or reasonably
appropriate in connection with the transactions contemplated by this Agreement,
and except as consented to by Thermo Electron, carry on its business in the
usual, regular and ordinary course, in substantially the same manner as
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heretofore conducted, pay its debts and taxes when due subject to good faith
disputes over such debts or taxes, pay or perform other material obligations
when due, and use its commercially reasonable efforts consistent with past
practices and policies to preserve intact its present business organization,
keep available the services of its present officers and employees and preserve
its relationships with customers, suppliers, distributors, licensors, licensees,
and others with which it has business dealings.
4.2. Conduct of Business by Thermo Electron. During the period from the
date of this Agreement and continuing until the earlier of the termination of
this Agreement pursuant to its terms or the Effective Time, Thermo Electron
shall not, and shall not permit any Material Thermo Subsidiary to, take any
action which would make any of the representations and warranties of Thermo
Electron contained herein untrue or cause Thermo Electron not to be in
compliance with any covenant set forth herein.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1. Registration Statement; Other Filings.
(a) As promptly as practicable after the execution of this
Agreement, the Company and Thermo Electron will jointly prepare and file with
the SEC a preliminary proxy statement (with appropriate requests for
confidential treatment) relating to the Merger and this Agreement (such proxy
statement, as amended or supplemented, the "Proxy Statement"), and Thermo
Electron will prepare and file with the SEC a registration statement on Form S-4
(the "Registration Statement"), in which the Proxy Statement shall be included
as a prospectus. Thermo Electron will use its best efforts to cause the
Registration Statement to be declared effective under the Securities Act as soon
as practicable after such filing, and will take all actions required under
applicable federal or state securities laws in connection with the issuance of
Thermo Common Stock in the Merger. Each party will notify the other promptly
upon the receipt of any comments from the SEC or its staff and of any request by
the SEC or its staff or any other government officials for amendments or
supplements to the Proxy Statement, the Registration Statement or any other
filing or for additional information and will supply the other party with copies
of all correspondence between such party or any of its representatives, on the
one hand, and the SEC, or its staff or any other government officials, on the
other hand, with respect to the Registration Statement, the Proxy Statement or
the Merger. Whenever any event occurs that is required to be set forth in an
amendment or supplement to the Registration Statement or the Proxy Statement,
the relevant party will promptly inform the other party of such occurrence and
cooperate in filing with the SEC or its staff or any other government officials,
and/or mailing to stockholders of the Company, such amendment or supplement.
(b) The information supplied by the Company for inclusion in the
Registration Statement (including any information incorporated by reference in
the Registration Statement from other filings made by the Company with the SEC)
will not, at the time the Registration Statement (including any amendments or
supplements thereto) is declared effective by the SEC, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The information
supplied by the Company for inclusion in the Proxy Statement to be sent to the
stockholders of the Company in connection with the meeting of the Company's
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stockholders to consider the adoption of this Agreement and approval of the
Merger (the "Company Stockholders' Meeting") (including any information
incorporated by reference in the Proxy Statement from other filings made by the
Company with the SEC) will not, on the date the Proxy Statement (or any
amendment thereof or supplement thereto) is first mailed to the Company
stockholders, at the time of the Company Stockholders' Meeting and at the
Effective Time, contain any statement which, at such time and in light of the
circumstances under which it shall be made, is false or misleading with respect
to any material fact, or shall omit to state any material fact necessary in
order to make the statements made therein not false or misleading in light of
the circumstances under which they were made, or omit to state any material fact
necessary to correct any statement in any earlier communication with respect to
the solicitation of proxies for the Company Stockholders' Meeting which has
become false or misleading.
(c) The information supplied by Thermo Electron and Merger Sub for
inclusion in the Registration Statement (including any information incorporated
by reference in the Registration Statement from other filings made by Thermo
Electron with the SEC) will not, at the time the Registration Statement
(including any amendments or supplements thereto) is declared effective by the
SEC, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The information supplied by Thermo Electron and Merger Sub for
inclusion in the Proxy Statement to be sent to the stockholders of the Company
in connection with the Company Stockholders' Meeting (including any information
incorporated by reference in the Proxy Statement from other filings made by
Thermo Electron with the SEC) will not, on the date the Proxy Statement (or any
amendment thereof or supplement thereto) is first mailed to the Company
stockholders, at the time of the Company Stockholders' Meeting and at the
Effective Time, contain any statement which, at such time and in light of the
circumstances under which it shall be made, is false or misleading with respect
to any material fact, or shall omit to state any material fact necessary in
order to make the statements made therein not false or misleading in light of
the circumstances under which they were made, or omit to state any material fact
necessary to correct any statement in any earlier communication with respect to
the solicitation of proxies for the Company Stockholders' Meeting which has
become false or misleading.
(d) The Proxy Statement will include the recommendation of the
Special Committee in favor of approval of this Agreement (except that the
Special Committee may withdraw, modify or refrain from making such
recommendation to the extent that the Special Committee determines after
consultation with outside legal counsel that failure to do so would violate the
Special Committee's fiduciary duties under applicable law).
(e) The Proxy Statement will include the recommendation of the Board
of Directors of the Company in favor of approval of this Agreement (except that
the Board of Directors of the Company may withdraw, modify or refrain from
making such recommendation to the extent that the Board determines after
consultation with outside legal counsel that failure to do so would violate the
Board's fiduciary duties under applicable law).
(f) To the extent that the Special Committee or the Board withdraws,
modifies or refrains from making their respective recommendations pursuant to
Sections 5.1(d) or (e) hereof, the Proxy Statement will reflect such action.
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5.2. Meeting of the Company Stockholders. Promptly after the date hereof,
the Company will take all action necessary in accordance with the DGCL and its
Certificate of Incorporation and Bylaws to convene the Company Stockholders'
Meeting to be held as promptly as reasonably practicable for the purpose of
voting upon this Agreement. Unless the Special Committee determines after
consultation with outside legal counsel that to do so would be inconsistent with
the Board's or the Special Committee's fiduciary duties under applicable law,
the Company will use its reasonable best efforts to solicit from its
stockholders proxies in favor of the approval of this Agreement and the Merger,
and will take all other action necessary or advisable to secure the vote or
consent of its stockholders required by the DGCL to obtain such approvals.
Thermo Electron shall vote, or cause to be voted, all of the Company Common
Stock then owned by it and any of its subsidiaries in favor of the approval of
this Agreement and the Merger.
5.3. Access to Information. Subject to applicable legal restrictions, each
of the parties hereto will afford the other (including, in the case of the
Company, the Special Committee) and each of their respective accountants,
counsel and other representatives reasonable access during normal business hours
to the properties, books, records and personnel of each of them during the
period prior to the Effective Time to obtain all information concerning their
respective businesses, including the status of their respective product
development efforts, properties, results of operations and personnel, as each of
them may reasonably request. Each of the parties hereto agrees that it will, and
will cause its representatives and agents to, keep all such information
confidential and will not, and will cause its representatives or agents not to,
use any information obtained pursuant to this Section 5.3 for any purpose
unrelated to the consummation of the transactions contemplated by this
Agreement. Notwithstanding the foregoing, none of the parties hereto shall be
required to keep confidential any information (i) which is or becomes generally
available to the public, other than by wrongful disclosure by the disclosing
party in violation of this Agreement or (ii) which becomes available to the
disclosing party on a nonconfidential basis from a source other than the
nondisclosing party or any officer or director of such party.
5.4. Public Disclosure. Thermo Electron and the Company will consult with
each other before issuing any press release or otherwise making any public
statement with respect to the Merger or this Agreement and will not issue any
such press release or make any such public statement prior to such consultation,
except as may be required by law or any listing agreement with a national
securities exchange. Promptly upon the execution hereof, the parties shall
jointly make a press release with respect to the transactions contemplated by
this Agreement, in form reasonably satisfactory to the Special Committee.
5.5. Legal Requirements. Subject to the terms of this Agreement, each of
Thermo Electron, Merger Sub and the Company will take all reasonable actions
necessary or desirable to comply promptly with all legal requirements that may
be imposed on them with respect to the consummation of the transactions
contemplated by this Agreement (including furnishing all information required in
connection with approvals of or filings with any Governmental Entity, and
including using its reasonable best efforts to defend any litigation prompted
hereby) and will promptly cooperate with and furnish information to any party
hereto necessary in connection with any such requirements imposed upon any of
them or their respective subsidiaries in connection with the consummation of the
transactions contemplated by this Agreement.
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5.6. Notification of Certain Matters. Subject to the terms of this
Agreement, Thermo Electron and Merger Sub will give prompt notice to the
Company, and the Company will give prompt notice to Thermo Electron, of the
occurrence, or failure to occur, of any event, which occurrence or failure to
occur would be reasonably likely to cause (a) any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material respect
at any time from the date of this Agreement to the Effective Time, or (b) any
material failure of Thermo Electron and Merger Sub or the Company, as the case
may be, or of any officer, director, employee or agent thereof, to comply with
or satisfy any covenant, condition or agreement to be complied with or satisfied
by it under this Agreement. From the date of this Agreement until the Effective
Time, Thermo Electron will give prompt notice to the Company and the Special
Committee of any written offers or indications of interest it receives from a
prospective purchaser of any material properties or assets of the Company or its
subsidiaries, which set forth a proposed purchase price greater than $50 million
or in which the book value of the assets being sold is greater than $10 million,
other than sales of assets and services in the ordinary course of business.
Notwithstanding the above, the delivery of any notice pursuant to this section
will not limit or otherwise affect the remedies available hereunder to the party
receiving such notice or the conditions to such party's obligation to consummate
the Merger.
5.7. Best Efforts and Further Assurances. Subject to the respective rights
and obligations of Thermo Electron and the Company under this Agreement, each of
the parties to this Agreement will use its reasonable best efforts to effectuate
the Merger and the other transactions contemplated hereby and to fulfill and
cause to be fulfilled the conditions to closing under this Agreement, it being
understood that such efforts shall not include any obligation to settle any
litigation prompted hereby. Subject to the terms hereof, each party hereto, at
the reasonable request of another party hereto, will execute and deliver such
other instruments and do and perform such other acts and things as may be
reasonably necessary or desirable for effecting completely the consummation of
the transactions contemplated hereby.
5.8. Stock Option Plans; Reservation of Shares.
(a) At the Effective Time, each outstanding option to purchase shares of
the Company Common Stock (each a "Company Stock Option") under the Company Stock
Option Plans, whether or not exercisable, will be assumed by Thermo Electron.
Each Company Stock Option so assumed by Thermo Electron under this Agreement
will continue to have, and be subject to, the same terms and conditions set
forth in the applicable Company Stock Option Plan immediately prior to the
Effective Time (including, without limitation, any repurchase rights), except
that (i) each Company Stock Option will be exercisable (or will become
exercisable in accordance with its terms) for that number of whole shares of
Thermo Common Stock equal to the product of the number of shares of Company
Common Stock that were issuable upon exercise of such Company Stock Option
immediately prior to the Effective Time multiplied by the Exchange Ratio
(rounded down to the nearest whole share), and (ii) the per share exercise price
for the shares of Thermo Common Stock issuable upon exercise of such assumed
Company Stock Option will be equal to the quotient determined by dividing the
exercise price per share of Company Common Stock at which such Company Stock
Option was exercisable immediately prior to the Effective Time by the Exchange
Ratio, rounded up to the nearest whole cent. After the Effective Time, Thermo
Electron will issue to each holder of an outstanding Company Stock Option a
notice describing the foregoing assumption of such Company Stock Option by
Thermo Electron.
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(b) Thermo Electron will reserve sufficient shares of Thermo Common Stock
for issuance under this Section 5.8 and pursuant to conversion of the
Convertible Debentures.
5.9. Thermo Electron Form S-8. Thermo Electron agrees to file a
registration statement on Form S-8 or, if possible, an amendment to Thermo
Electron's then effective registration statement on Form S-8, for the shares of
Thermo Common Stock issuable with respect to the assumed Company Stock Options
within five (5) business days after the Effective Time and shall use its best
efforts to keep such registration statement effective for so long as any such
options remain outstanding.
5.10. Indemnification; Insurance.
(a) The Certificate of Incorporation and Bylaws of the Surviving
Corporation will contain the provisions with respect to indemnification and
elimination of liability for monetary damages set forth in the Certificate of
Incorporation and Bylaws of the Company, which provisions will not be amended,
repealed or otherwise modified for a period of six (6) years from the Effective
Time in any manner that would adversely affect the rights thereunder of
individuals who, on or prior to the date hereof or at any time from the date
hereof to the Effective Time, were directors or officers of the Company, unless
such modification is required by law. The Surviving Corporation shall, and
Thermo Electron will cause the Surviving Corporation to, fulfill and honor in
all respects the indemnification obligations of the Company pursuant to the
provisions of the Certificate of Incorporation and the Bylaws of the Company as
in effect on the date of this Agreement.
(b) For a period of six (6) years after the Effective Time, Thermo
Electron shall cause the Surviving Corporation to, either directly or through
participation in Thermo Electron's umbrella policy, maintain in effect a
directors' and officers' liability insurance policy covering those Company
directors and officers currently covered by Thermo Electron's liability
insurance policy with coverage no less favorable in amount and scope than
existing coverage for such Company directors and officers (which coverage may be
an endorsement extending the period in which claims may be made under such
existing policy); provided, however, that in no event shall the Surviving
Corporation be required to expend to maintain or procure insurance coverage
pursuant to this Section 5.10, directly or through participation in Thermo
Electron's policy, an amount per annum in excess of 175% of the current annual
premiums, as adjusted for inflation each year, allocable and payable by the
Company (the "Maximum Premium") with respect to such insurance, or, if the cost
of such insurance exceeds the Maximum Premium, the maximum amount of coverage
that can be purchased or maintained for the Maximum Premium.
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(c) The Company shall, to the fullest extent permitted under
applicable law and regardless of whether the Merger becomes effective, indemnify
and hold harmless each of Carliss Y. Baldwin and I. MacAllister Booth
(collectively, the "Outside Directors") against all costs and expenses
(including attorneys' fees), judgments, fines, losses, claims, damages,
liabilities and settlement amounts paid in connection with any claim, action,
suit, proceeding or investigation, whether civil, criminal, administrative or
investigative, arising out of or pertaining to any action or omission in the
Outside Directors' capacity as directors (including, without limitation, as
members of the Special Committee) or fiduciaries of the Company (including,
without limitation, in connection with the transactions contemplated by this
Agreement) occurring on, before or after the Effective Time (or, if this
Agreement is terminated without the Merger becoming effective, occurring on,
before or after the date of such termination), until the expiration of the
statute of limitations relating thereto (and shall pay any expenses in advance
of the final disposition of such action or proceeding to the Outside Directors
to the fullest extent permitted under applicable law, upon receipt from the
Outside Directors of an undertaking (which need not be secured or subject to a
bond or other requirement) to repay any advanced expenses if it shall ultimately
be determined that the Outside Directors are not entitled to be indemnified
against such expenses). If the Merger becomes effective, Thermo Electron shall
be jointly and severally responsible, to the fullest extent permitted by
applicable law (it being understood that applicable law may permit Thermo
Electron to indemnify or advance expenses to the Outside Directors under
circumstances in which the Company could not do so), for the indemnification and
advancement of expenses obligations provided for in the first sentence of this
Section 5.10(c). If the Merger does not become effective, Thermo Electron shall
have the same responsibilities set forth in the immediately preceding sentence,
except that Thermo Electron shall have no responsibility for indemnifying or
advancing expenses to the Outside Directors with respect to matters that do not
arise out of or pertain to the work of the Special Committee, this Agreement or
the transactions contemplated hereby. In the event of any claim, action, suit,
proceeding or investigation covered by this Section 5.10(c), (i) the Company,
Thermo Electron and the Surviving Corporation, as the case may be, shall pay the
reasonable fees and expenses of counsel selected by the Outside Directors,
promptly after statements therefor are received, and (ii) the Company, Thermo
Electron and the Surviving Corporation shall cooperate in the defense of any
such matter; provided, however, that neither the Company nor Thermo Electron nor
the Surviving Corporation shall be liable for any settlement effected without
Thermo Electron's prior written consent (such consent not to be unreasonably
withheld or delayed); and provided, further, that, in the event any claim for
indemnification is asserted or made within the period prior to the expiration of
the applicable statute of limitations, all rights to indemnification in respect
of such claim shall continue until the disposition of such claim. In connection
with Thermo Electron or the Surviving Corporation making any payment or
advancing any funds pursuant to this Section 5.10(c), Thermo Electron or the
Surviving Corporation, as the case may be, shall be entitled to require the
Outside Directors to use commercially reasonable efforts, at the cost and
expense of Thermo Electron and the Surviving Corporation, to cause Thermo
Electron or the Surviving Corporation, as the case may be, to be subrogated to
the Outside Directors' rights under any insurance coverage maintained by the
Surviving Corporation, Thermo Electron or any of their respective affiliates
with respect to the underlying subject matter of, and to the extent of, such
payment or advance.
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(d) In the event the Company, Thermo Electron or the Surviving
Corporation or any of their respective successors or assigns (i) consolidates
with or merges into any other person and shall not be the continuing or
surviving corporation or entity of such consolidation or merger, or (ii)
transfers all or substantially all of its properties or assets to any person,
then, and in each such case, proper provision shall be made so that the
successors and assigns of the Company, Thermo Electron and the Surviving
Corporation, as the case may be, shall assume the obligations set forth in this
Section 5.10.
(e) This Section 5.10 shall survive the Effective Time for a period
of six (6) years and is intended to benefit the Company, the Surviving
Corporation and those individuals who, at or prior to the Effective Time, were
directors or officers of the Company and their respective heirs and
representatives (each of whom shall be entitled to enforce this Section 5.10
against Thermo Electron or the Surviving Corporation) and shall be binding on
all successors and assigns of Thermo Electron and the Surviving Corporation.
(f) The rights of the officers and directors of the Company
(including, without limitation, the Outside Directors) under this Section 5.10
are in addition to any rights of such persons under separate indemnification
agreements any such persons may have with the Company and/or Thermo Electron,
under the Certificate of Incorporation or Bylaws of the Company or Thermo
Electron or otherwise.
5.11. Deferred Compensation Plan. At the Effective Time, the Company
Directors Deferred Compensation Plan will terminate, and the Company will
distribute to each participant Thermo Common Stock in amounts determined by
multiplying the Exchange Ratio by the balance of the stock units credited to
such participant's deferred compensation account under the Company Directors
Deferred Compensation Plan as of the Effective Time, adjusted as described in
Section 1.6(f) and Section 1.11 of this Agreement.
5.12 Compliance by Merger Sub. Thermo Electron shall cause Merger Sub to
timely perform and comply with all of its obligations under or related to this
Agreement.
5.13 NYSE Listing. Thermo Electron shall use its best efforts to cause all
shares of Thermo Common Stock issuable (i) to holders of Company Common Stock as
a result of the Merger, (ii) upon conversion of the Convertible Debentures, and
(iii) pursuant to Company Stock Option Plans as assumed by Thermo Electron
pursuant to this Agreement, to be authorized for listing on the New York Stock
Exchange.
5.14 AMEX Listing. Thermo Electron shall use its best efforts to cause all
Thermo Units to be authorized for listing on the American Stock Exchange.
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ARTICLE VI
CONDITIONS TO THE MERGER
6.1. Conditions to Obligations of Each Party to Effect the Merger. The
respective obligations of each party to this Agreement to effect the Merger
shall be subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) No Order. No Governmental Entity shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, executive order,
decree, injunction or other order (whether temporary, preliminary or permanent)
which is in effect and which has the effect of making the Merger illegal or
otherwise prohibiting consummation of the Merger.
(b) Registration Statements. The Registration Statement shall have
been declared effective by the SEC and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the SEC.
(c) NYSE and AMEX Listings. The Thermo Common Stock issuable (i) to
holders of Company Common Stock, (ii) upon conversion of the Convertible
Debentures, and (iii) pursuant to Company Stock Option Plans as assumed by
Thermo Electron pursuant to this Agreement, shall have been authorized for
listing on the New York Stock Exchange; and the Thermo Units shall have been
authorized for listing on the American Stock Exchange.
(d) Stockholder Approval. This Agreement shall have been approved
and adopted by the requisite vote under the DGCL by the stockholders of the
Company.
(e) Rights Agreement. No Stock Acquisition Date or other event that
would result in the occurrence of a Distribution Date shall have occurred (as
such terms are defined in the Rights Agreement), with respect to the rights to
purchase a unit consisting of one ten-thousandth of a share of Thermo Electron's
Series B Junior Participating Preferred Stock pursuant to the Rights Agreement.
6.2. Additional Conditions to Obligations of the Company. The obligations
of the Company to consummate and effect the Merger shall be subject to the
satisfaction at or prior to the Effective Time of each of the following
conditions, any of which may be waived, in writing, exclusively by the Company
(provided that the Special Committee shall have consented in writing to any such
waiver):
(a) Representations and Warranties. The representations and
warranties of Thermo Electron and Merger Sub contained in this Agreement shall
be true and correct in all material respects (other than those already qualified
by a materiality standard, which shall be true and correct in all respects) on
and as of the Effective Time, except for changes expressly contemplated by this
Agreement and except for those representations and warranties that address
matters only as of a particular date (which shall remain true and correct as of
such particular date), with the same force and effect as if made on and as of
the Effective Time; and the Company shall have received a certificate to such
effect signed on behalf of Thermo Electron by the President, Chief Executive
Officer or Vice President of Thermo Electron.
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(b) Agreements and Covenants. Thermo Electron and Merger Sub shall
have performed or complied in all material respects with all agreements and
covenants required by this Agreement to be performed or complied with by them on
or prior to the Effective Time, and the Company shall have received a
certificate to such effect signed on behalf of Thermo Electron by the President,
Chief Executive Officer or Vice President of Thermo Electron.
(c) Fairness Opinion. At the time of mailing of the Proxy Statement
to the stockholders of the Company and at the Effective Time, the Financial
Advisor shall have reaffirmed in writing the fairness opinion previously
prepared and delivered by it to the Special Committee and the Financial Advisor
shall not have withdrawn such opinion.
(d) State Securities Laws. Any and all necessary state securities
approvals for the issuance of Thermo Common Stock pursuant to this Agreement
shall have been obtained.
(e) Certificate Regarding No Material Adverse Change. The Company
shall have received a certificate signed on behalf of Thermo Electron by its
President, Chief Executive Officer or Vice President stating that there has been
no change in the business, financial condition, or results of operations of
Thermo Electron that has resulted in or is reasonably likely to result in a
Material Adverse Effect on Thermo Electron.
6.3. Additional Conditions to the Obligations of Thermo Electron and
Merger Sub. The obligations of Thermo Electron and Merger Sub to consummate and
effect the Merger shall be subject to the satisfaction at or prior to the
Effective Time of each of the following conditions, any of which may be waived,
in writing, exclusively by Thermo Electron and Merger Sub:
(a) Representations and Warranties. The representations and
warranties of the Company contained in this Agreement shall be true and correct
in all material respects (other than those already qualified by a materiality
standard, which shall be true and correct in all respects) on and as of the
Effective Time, except for changes contemplated by this Agreement and except for
those representations and warranties that address matters only as of a
particular date (which shall remain true and correct as of such particular
date), with the same force and effect as if made on and as of the Effective
Time, except, in all such cases, where the failure to be so true and correct
would not have a Material Adverse Effect on the Company; and Thermo Electron and
Merger Sub shall have received a certificate to such effect signed on behalf of
the Company by the President, Chief Executive Officer or Vice President of the
Company.
(b) Agreements and Covenants. The Company shall have performed or
complied in all material respects with all agreements and covenants required by
this Agreement to be performed or complied with by it on or prior to the
Effective Time, and Thermo Electron shall have received a certificate to such
effect signed on behalf of the Company by the President, Chief Executive Officer
or Vice President of the Company.
(c) No Withdrawal of Special Committee Recommendation. The Special
Committee shall not have withdrawn its recommendation to the Board of Directors
to approve this Agreement and the Merger as set forth in Section 2.4 hereof.
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(d) Stockholder Approval. This Agreement shall have been approved
and adopted by the Company Vote.
(e) Certificate Regarding No Material Adverse Change. Thermo
Electron and Merger Sub shall have received a certificate signed on behalf of
the Company by the President, Chief Executive Officer or Vice President of the
Company stating that there has been no change in the business, financial
condition, or results of operations of the Company that has resulted in or is
reasonably likely to result in a Material Adverse Effect on the Company.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1. Termination. This Agreement may be terminated at any time prior to
the Effective Time of the Merger, whether before or after approval of this
Agreement by the stockholders of the Company:
(a) by mutual written consent duly authorized by the Boards of
Directors of Merger Sub and the Company (with the concurrence of the Special
Committee);
(b) by either the Company (with the concurrence of the Special
Committee) or Merger Sub if the Merger shall not have been consummated by
September 30, 2000; provided, however, that the right to terminate this
Agreement under this Section 7.1(b) shall not be available to any party whose
action or failure to act has been a principal cause of or resulted in the
failure of the Merger to occur on or before such date if such action or failure
to act constitutes a breach of this Agreement;
(c) by either the Company (with the concurrence of the Special
Committee) or Merger Sub if a court of competent jurisdiction or governmental,
regulatory or administrative agency or commission shall have issued an order,
decree or ruling or taken any other action (an "Order"), in any case having the
effect of permanently restraining, enjoining or otherwise prohibiting the
Merger, which order, decree or ruling is final and nonappealable;
(d) by either the Company (with the concurrence of the Special
Committee) or Merger Sub if the required approval of the stockholders of the
Company contemplated by this Agreement shall not have been obtained by reason of
the failure to obtain the required vote upon a vote taken at a meeting of
stockholders duly convened therefor or at any adjournment thereof (provided that
the right to terminate this Agreement under this Section 7.1(d) shall not be
available to the Company where the failure to obtain stockholder approval of the
Company shall have been caused by the action or failure to act of the Company in
breach of this Agreement and the right to terminate this Agreement under this
Section 7.1(d) shall not be available to Thermo Electron or Merger Sub where the
failure to obtain the requisite vote by the stockholders of the Company shall
have been caused by the action or failure to act of Thermo Electron or Merger
Sub in breach of this Agreement or by the failure of Thermo Electron or any
direct or indirect subsidiary of Thermo Electron (whether or not wholly-owned)
to vote its shares of Company Common Stock in favor of the Merger and this
Agreement);
24
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(e) by the Company (with the concurrence of the Special Committee),
upon a breach of any representation, warranty, covenant or agreement on the part
of Thermo Electron or Merger Sub set forth in this Agreement, if (i) as a result
of such breach the conditions set forth in Section 6.2(a) or Section 6.2(b)
would not be satisfied as of the time of such breach and (ii) such breach shall
not have been cured by Thermo Electron or Merger Sub within ten (10) business
days following receipt by Thermo Electron of written notice of such breach from
the Company;
(f) by Merger Sub, upon a breach of any representation, warranty,
covenant or agreement on the part of the Company set forth in this Agreement, if
(i) as a result of such breach the conditions set forth in Section 6.3(a) or
Section 6.3(b) would not be satisfied as of the time of such breach and (ii)
such breach shall not have been cured by the Company within ten (10) business
days following receipt by the Company of written notice of such breach from
Merger Sub;
(g) by the Company if the Board of Directors determines after
consultation with outside legal counsel that failure to do so would violate the
Board's fiduciary duties under applicable law;
(h) by Merger Sub upon the Company's inability to provide the
certificate required by Section 6.3(e) hereof and its continuing inability to
provide such certificate within fifteen (15) business days following receipt by
the Company of written notice from Merger Sub; or
7.2. Notice of Termination; Effect of Termination. Any termination of this
Agreement under Section 7.1 above will be effective immediately upon the
delivery of written notice by the terminating party to the other parties hereto
(or, in the case of a termination pursuant to Section 7.1(e), 7.1(f), or 7.1(h),
the expiration of the ten or fifteen business day period referred to therein).
In the event of the termination of this Agreement as provided in Section 7.1,
this Agreement shall be of no further force or effect, except that (i) the
confidentiality obligations of each party hereto contained in Section 5.3, the
covenants and obligations set forth in Section 5.10 and the provisions of
Sections 7.2, 7.3 and 8.1 shall survive any such termination and (ii) nothing
herein shall relieve any party from liability for any material breach of this
Agreement.
7.3. Fees and Expenses. All fees and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by Thermo
Electron, whether or not the Merger is consummated.
7.4. Amendment. Subject to applicable law, this Agreement may be amended
by the parties hereto at any time by execution of an instrument in writing
signed on behalf of each of the parties hereto; provided, however, that the
Company may not amend this Agreement without the concurrence of the Special
Committee.
7.5. Extension; Waiver. At any time prior to the Effective Time any party
hereto may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties made to such
party contained herein or in any document delivered pursuant hereto and (iii)
waive compliance with any of the agreements or conditions for the benefit of
such party contained herein; provided, however, that the Company may not take
any such actions without the concurrence of the Special Committee. Any agreement
on the part of a party hereto to any such extension or waiver shall be valid
only if set forth in an instrument in writing signed on behalf of such party.
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ARTICLE VIII
GENERAL PROVISIONS
8.1. Non-Survival of Representations and Warranties. The representations
and warranties of the Company, Thermo Electron and Merger Sub contained in this
Agreement shall terminate at the Effective Time, and only the covenants that by
their terms, or as the context requires, survive the Effective Time shall
survive the Effective Time.
8.2. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
delivery service, or sent via telecopy (receipt confirmed) to the parties at the
following addresses or telecopy numbers (or at such other address or telecopy
numbers for a party as shall be specified by like notice):
(a) if to Thermo Electron or Merger Sub, to:
Thermo Electron Corporation
81 Wyman Street
Waltham, MA 02454
Attention: President
Telephone: (781) 622-1000
Facsimile: (781) 622-1283
with a copy to:
Thermo Electron Corporation
81 Wyman Street
Waltham, MA 02454
Attention: General Counsel
Telephone: (781) 622-1000
Facsimile: (781) 622-1283
(b) if to the Company, to
ThermoLase Corporation
2055-C Luna Road
Carrollton, TX 75006
Attention: President
Telephone: (972) 488-0710
Facsimile: (972) 241-0669
26
<PAGE>
with a copy (which shall not constitute notice to the Company) to:
Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
Attention: Harvey E. Bines. Esq.
Telephone: (617) 338-2800
Facsimile: (617) 338-2880
8.3. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
8.4. Entire Agreement. This Agreement and the documents and instruments
and other agreements among the parties hereto as contemplated by or referred to
herein (a) constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof, with the exception of the agreements relating to the Convertible
Debentures, the Units, the Company Stock Option Plans and any agreements
relating to the indemnification of members of the Board; and (b) are not
intended to confer upon any other person any rights or remedies hereunder,
except as set forth herein. Notwithstanding the foregoing, Section 5.10 hereof
is intended to be for the benefit of, and may be enforced by, those individuals
who, as of the date hereof and at any time from the date hereof to the Effective
Time, were directors or officers of the Company.
8.5. Severability. In the event that any provision of this Agreement or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
8.6. Other Remedies; Specific Performance. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
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8.7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, regardless of the
laws that might otherwise govern under applicable principles of conflicts of law
thereof, except to the extent that the DGCL applies.
8.8. Assignment. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other parties.
8.9 Headings. The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
[remainder of page intentionally left blank]
28
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IN WITNESS WHEREOF, Thermo Electron, Merger Sub and the Company have
caused this Agreement to be signed by themselves or their duly authorized
respective officers, all as of the date first written above.
THERMO ELECTRON CORPORATION
By: /s/ Theo Melas-Kyriazi
--------------------------------
Name: Theo Melas-Kyriazi
Title: Vice President and
Chief Financial Officer
THERMOLASE ACQUISITION
CORPORATION
By: /s/ John T. Keiser
--------------------------------
Name: John T. Keiser
Title: President
THERMOLASE CORPORATION
By: /s/ Kenneth J. Apicerno
--------------------------------
Name: Kenneth J. Apicerno
Title: Treasurer
29
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TABLE OF CONTENTS
Page
ARTICLE I THE MERGER.........................................................2
1.1. The Merger.............................................................2
1.2. Effective Time; Closing................................................2
1.3. Effect of the Merger...................................................2
1.4. Certificate of Incorporation; Bylaws...................................3
1.5. Directors and Officers.................................................3
1.6. Effect on Capital Stock................................................3
1.7. Surrender of Certificates..............................................5
1.8. No Further Ownership Rights in Company Common Stock or Units...........7
1.9. Lost, Stolen or Destroyed Certificates.................................7
1.10. Dividends..............................................................7
1.11. Fractional Shares......................................................8
1.12. Closing of Transfer Books..............................................8
1.13. Taking of Necessary Action; Further Action.............................8
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY.....................8
2.1. Organization of the Company............................................8
2.2. Company Capital Structure..............................................9
2.3. Authority..............................................................9
2.4. Board Approval........................................................10
2.5. Fairness Opinion......................................................10
2.6 Registration Statement; Proxy Statement/Prospectus....................10
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THERMO ELECTRON AND
MERGER SUB............................................................10
3.1. Organization..........................................................11
3.2. Authority.............................................................11
3.3. Capitalization........................................................12
3.4 Reports and Financial Statements......................................13
3.5 Information Provided to Financial Advisor.............................13
3.6 Litigation............................................................14
3.7 Merger Sub........................................................... 14
3.8 Registration Statement; Proxy Statement/Prospectus................... 14
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ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME..............................14
4.1. Conduct of Business by the Company....................................14
4.2. Conduct of Business by Thermo Electron................................15
ARTICLE V ADDITIONAL AGREEMENTS.............................................15
5.1. Registration Statement; Other Filings.................................15
5.2. Meeting of the Company Stockholders...................................17
5.3. Access to Information.................................................17
5.4. Public Disclosure.....................................................17
5.5. Legal Requirements....................................................17
5.6. Notification of Certain Matters.......................................18
5.7. Best Efforts and Further Assurances...................................18
5.8. Stock Option Plans; Reservation of Shares.............................18
5.9. Thermo Electron Form S-8..............................................19
5.10. Indemnification; Insurance............................................19
5.11. Deferred Compensation Plan............................................21
Compliance by Merger Sub....................................................21
5.14 NYSE Listing .........................................................21
5.14. AMEX Listing..........................................................21
ARTICLE VI CONDITIONS TO THE MERGER.........................................22
6.1. Conditions to Obligations of Each Party to Effect the Merger..........22
6.2. Additional Conditions to Obligations of the Company...................22
6.3. Additional Conditions to the Obligations of Thermo Electron and
Merger Sub............................................................23
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER...............................24
7.1. Termination...........................................................24
7.2. Notice of Termination; Effect of Termination..........................25
7.3. Fees and Expenses.....................................................25
7.4. Amendment.............................................................25
7.5. Extension; Waiver.....................................................25
ARTICLE VIII GENERAL PROVISIONS.............................................26
8.1. Non-Survival of Representations and Warranties........................26
8.2. Notices...............................................................26
8.3. Counterparts..........................................................27
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8.4. Entire Agreement......................................................27
8.5. Severability..........................................................27
8.6. Other Remedies; Specific Performance..................................27
8.7. Governing Law.........................................................28
8.8. Assignment............................................................28
8.9 Headings..............................................................28
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