<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
AMENDMENT NO. 2
TO
SCHEDULE 13E-3
RULE 13E-3 TRANSACTION STATEMENT
(PURSUANT TO SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934)
ThermoSpectra Corporation
(Name of Issuer)
ThermoSpectra Corporation
TS Acquisition Corporation
Thermo Instrument Systems Inc.
Thermo Electron Corporation
(Name of Person(s) Filing Statement)
Common Stock, par value $.01 per share
(Title of Class of Securities)
883660 10 2
(CUSIP Number of Class of Securities)
Sandra L. Lambert, Clerk
ThermoSpectra Corporation
c/o Thermo Electron Corporation
81 Wyman Street
P.O. Box 9046
Waltham, Massachusetts 02454-9046
(781) 622-1000
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Person(s) Filing Statement)
with a copy to:
Seth H. Hoogasian, General Counsel
ThermoSpectra Corporation
c/o Thermo Electron Corporation
81 Wyman Street
P.O. Box 9046
Waltham, Massachusetts 02454-9046
(781) 622-1000
This statement is filed in connection with (check the appropriate box):
a. /X/ The filing of solicitation materials or an information statement subject
to Regulation 14A, Regulation 14C, or Rule 13e-3(c) under the Securities
Exchange Act of 1934.
b. / / The filing of a registration statement under the Securities Act of 1933.
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c. / / A tender offer.
d. / / None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are preliminary copies. / /
Calculation of Filing Fee
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Transaction Value* Amount of Filing Fee
- -------------------------------------------------------------------------------
<S> <C>
$19,387,936 $3,878
- -------------------------------------------------------------------------------
</TABLE>
* Solely for purposes of calculating the filing fee. Assumes purchase of
1,211,746 shares of Common Stock, par value $.01 per share, of ThermoSpectra
Corporation at $16.00 per share.
/X/ Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the form
or schedule and the date of its filing.
Amount previously paid: $3,878
Form or registration no.: Preliminary Proxy Statement on Schedule 14A
Filing party: ThermoSpectra Corporation
Date filed: July 13, 1999, September 7, 1999 and
November 2, 1999
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This Amendment No. 2 to Rule 13e-3 Transaction Statement (as so
amended, the "Statement") is being filed in connection with the filing by
ThermoSpectra Corporation ("ThermoSpectra" or the "Company") with the
Securities and Exchange Commission (the "Commission") on November 2, 1999 of
a definitive Proxy Statement on Schedule 14A (as amended, the "Proxy
Statement") in connection with a special meeting of the stockholders of
ThermoSpectra. At such meeting, the stockholders of ThermoSpectra will vote
upon the approval of an Agreement and Plan of Merger dated as of May 21, 1999
(the "Merger Agreement") by and among Thermo Instrument Systems Inc. ("Thermo
Instrument"), TS Acquisition Corporation (the "Merger Sub") and
ThermoSpectra, pursuant to which the Merger Sub, a wholly owned subsidiary of
Thermo Instrument, will be merged with and into ThermoSpectra.
The following cross reference sheet is being supplied pursuant to
General Instruction F to Schedule 13E-3 and shows the location in the Proxy
Statement of the information required to be included in response to the items of
this Statement. The information in the Proxy Statement that is attached hereto
as Exhibit 17(d)(3), including all appendices thereto, is hereby expressly
incorporated herein by reference and the responses to each item are qualified in
their entirety by the provisions of the Proxy Statement.
CROSS REFERENCE SHEET
Item in Schedule 13E-3 Caption or Location in the Proxy Statement
- ---------------------- ------------------------------------------
Item 1(a)..................."Introduction;" "Summary - Purpose of the Special
Meeting;" "- Parties to the Merger"
Item 1(b)..................."Introduction;" "Summary - Purpose of the Special
Meeting;" "- Record Date and Quorum;" "- Market
Prices of Common Stock and Dividends;" "The Special
Meeting - Record Date and Quorum Requirement"
Item 1(c)..................."Summary - Market Prices of Common Stock and
Dividends"
Item 1(d)..................."Summary - Market Prices of Common Stock and
Dividends;" "The Merger - Covenants"
Item 1(e)...................Not applicable
Item 1(f)..................."Appendix E - Information Concerning Transactions in
the Common Stock of the Company"
Item 2(a) - (c)............."Summary - Parties to the Merger;" "Business of the
Company;" "Management;" "Certain Information
Concerning the Merger Sub, Thermo
3
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Instrument and Thermo Electron;" "Appendix D -
Information Concerning Directors and Executive
Officers of the Company, Thermo Instrument, the
Merger Sub and Thermo Electron"
Item 2(d)..................."Management;" "Appendix D - Information Concerning
Directors and Executive Officers of the Company,
Thermo Instrument, the Merger Sub and Thermo
Electron"
Item 2(e)...................Not Applicable
Item 2(f)...................Not Applicable
Item 2(g)..................."Appendix D - Information Concerning Directors and
Executive Officers of the Company, Thermo
Instrument, the Merger Sub and Thermo Electron"
Item 3(a)(1)................"Certain Transactions"
Item 3(a)(2) - 3 (b)........"Summary - The Merger;" "- The Special Committee's
and the Board's Recommendation;" "- Purpose and
Reasons of Thermo Instrument and Thermo Electron for
the Merger;" "Special Factors - Background of the
Merger;" "- The Special Committee's and the Board's
Recommendation;" "- Purpose and Reasons of Thermo
Instrument and Thermo Electron for the Merger;"
"Certain Transactions;" "Appendix E - Information
Concerning Transactions in the Common Stock of the
Company"
Item 4(a)..................."Introduction;" "Summary - The Merger;" "- Effective
Time of the Merger and Payment for Shares;"
"- Assumption of ThermoSpectra Stock Options by
Thermo Instrument;" "- Conflicts of Interest;"
"- Certain Effects of the Merger;" "- Conditions
to the Merger, Termination and Expenses;" "Special
Factors - Conflicts of Interest;" "- Certain Effects
of the Merger;" "The Merger;" "Appendix A -
Agreement and Plan of Merger"
Item 4(b)..................."Introduction;" "Summary - Purpose of the Special
Meeting;" "-The Merger;" "The Merger - Conversion of
Securities;" "- Deferred
4
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Compensation Plan for Directors;" "Federal Income
Tax Consequences;" "Appendix A - Agreement and Plan
of Merger"
Item 5(a)..................."Special Factors - Conduct of ThermoSpectra's
Business After the Merger"
Item 5(b)..................."Special Factors - Conduct of ThermoSpectra's
Business After the Merger"
Item 5(c)..................."Introduction;" "Special Factors - Conflicts of
Interest;" " - Conduct of ThermoSpectra's Business
After the Merger"
Item 5(d)..................."Summary - Certain Effects of the Merger;" "Special
Factors - Certain Effects of the Merger;" "The
Merger - Conversion of Securities"
Item 5(e)..................."Summary - Certain Effects of the Merger;" "Special
Factors - Certain Effects of the Merger;" "- Conduct
of ThermoSpectra's Business After the Merger"
Item 5(f)..................."Summary - Certain Effects of the Merger;" "Special
Factors - Certain Effects of the Merger"
Item 5(g)..................."Summary - Certain Effects of the Merger;" "Special
Factors - Certain Effects of the Merger"
Item 6(a)..................."Summary - The Merger;" "The Merger - Source of
Funds"
Item 6(b)..................."Summary - Opinion of Financial Advisor;"
"- Conflicts of Interest;" "Special Factors -
Opinion of Financial Advisor;" "- Conflicts of
Interest;" "The Merger - Expenses"
Item 6(c)...................Not applicable
Item 6(d)...................Not applicable
Item 7(a) - (c)............."Summary - The Merger;" "- The Special Committee's
and the Board's Recommendation;" "- Opinion of
Financial Advisor;" "- Purpose and Reasons of Thermo
Instrument and Thermo Electron for the Merger;"
"Special Factors -
5
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Background of the Merger;" "- The Special
Committee's and the Board's Recommendation;"
"- Opinion of Financial Advisor;" " - Purpose and
Reasons of Thermo Instrument and Thermo Electron for
the Merger"
Item 7(d)..................."Summary - The Merger;" "- Assumption of
ThermoSpectra Stock Options by Thermo Instrument;"
"- Conflicts of Interest;" "- Certain Effects of the
Merger;" "- Federal Income Tax Consequences;"
"Special Factors - Conflicts of Interest;"
"- Certain Effects of the Merger;" "- Conduct of
ThermoSpectra's Business After the Merger;" "The
Merger - Conversion of Securities;" "- Assumption of
ThermoSpectra Stock Options by the Thermo
Instrument;" "- Deferred Compensation Plan for
Directors;" "Federal Income Tax Consequences"
Item 8(a)..................."Summary - The Special Committee's and the Board's
Recommendation;" " - Position of Thermo Instrument
and Thermo Electron as to Fairness of the Merger;"
"Special Factors - The Special Committee's and the
Board's Recommendation;" "- Position of Thermo
Instrument and Thermo Electron as to Fairness of the
Merger"
Item 8(b)..................."Summary - The Special Committee's and the Board's
Recommendation;" "- Opinion of Financial Advisor;"
" - Position of Thermo Instrument and Thermo
Electron as to Fairness of the Merger;" "Special
Factors - Background of the Merger;" "- The Special
Committee's and the Board's Recommendation;"
"- Opinion of Financial Advisor;" "- Position of
Thermo Instrument and Thermo Electron as to Fairness
of the Merger"
Item 8(c)..................."Introduction;" "Summary - Vote Required and
Revocation of Proxies;" "The Special Meeting -
Voting Procedures"
Item 8(d)..................."Summary - The Special Committee's and the Board's
Recommendation;" "- Opinion of Financial Advisor;"
"Special Factors - Background of the Merger;" "- The
Special Committee's and the Board's Recommendation;"
"- Opinion of Financial
6
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Advisor;" "Appendix B - Opinion of Tucker Anthony
Cleary Gull"
Item 8(e)..................."Summary - The Special Committee's and the Board's
Recommendation;" "Special Factors - The Special
Committee's and the Board's Recommendation"
Item 8(f)...................Not applicable
Item 9(a) - (c)............."Summary - Opinion of Financial Advisor;" "Special
Factors - Background of the Merger;" "- Opinion of
Financial Advisor;" "Appendix B - Opinion of Tucker
Anthony Cleary Gull"
Item 10(a).................."Introduction;" "Summary - Vote Required and
Revocation of Proxies;" "- The Special Committee's
and the Board's Recommendation;" "- Conflicts of
Interest;" "Special Factors - Purpose and Reasons of
Thermo Instrument and Thermo Electron for the
Merger;" "- Conflicts of Interest;" "The Special
Meeting - Voting Procedures;" "Security Ownership of
Certain Beneficial Owners and Management;" "Appendix
E - Information Concerning Transactions in the
Common Stock of the Company"
Item 10(b).................."Appendix E - Information Concerning Transactions in
the Common Stock of the Company"
Item 11....................."Introduction;" "Summary - Vote Required and
Revocation of Proxies;" "- The Merger;" "The Special
Meeting - Voting Procedures;" "The Merger;"
"Appendix A Agreement and Plan of Merger"
Item 12(a).................."Introduction;" "Summary - Vote Required and
Revocation of Proxies;" "The Special Meeting -
Voting Procedures;" "Appendix D - Information
Concerning Directors and Executive Officers of the
Company, Thermo Instrument, the Merger Sub and
Thermo Electron"
Item 12(b).................."Summary - The Special Committee's and the Board's
Recommendation;" "- Position of Thermo
7
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Instrument and Thermo Electron as to Fairness of the
Merger;" "Special Factors - The Special Committee's
and the Board's Recommendation;" "- Position of
Thermo Instrument and Thermo Electron as to Fairness
of the Merger"
Item 13(a).................."Summary - Rights of Dissenting Stockholders;" "The
Special Meeting - Voting Procedures;" "Rights of
Dissenting Stockholders;" "Appendix C - Text of
Section 262 of the General Corporation Law of the
State of Delaware"
Item 13(b)..................Not applicable
Item 13(c)..................Not applicable
Item 14(a).................."Selected Financial Information;" "Consolidated
Financial Statements"
Item 14(b)..................Not applicable
Item 15(a).................."The Special Meeting - Proxy Solicitation"
Item 15(b)..................Not applicable
Item 16.....................Entirety of Proxy Statement
Item 17(a)..................Not applicable
Item 17(b)(1)...............Opinion of Tucker Anthony Cleary Gull dated May 21,
1999 (included as Appendix B to the Proxy Statement)
Item 17(b)(2)...............Presentation dated May 20, 1999 to the Special
Committee of the Board of Directors of
ThermoSpectra Corporation by Tucker Anthony Cleary
Gull
Item 17(c)..................Agreement and Plan of Merger dated as of May 21,
1999 by and among Thermo Instrument Systems Inc., TS
Acquisition Corporation and ThermoSpectra
Corporation (included as Appendix A to the Proxy
Statement)
Item 17(d)(1)...............Copy of Letter to Stockholders
Item 17(d)(2)...............Copy of Notice of Special Meeting of Stockholders
Item 17(d)(3)...............Definitive Proxy Statement
8
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Item 17(d)(4)...............Form of Proxy
Item 17(e)..................Text of Section 262 of the General Corporation Law
of the State of Delaware (included as Appendix C to
the Proxy Statement)
Item 17(f)..................Definitive Proxy Statement
ITEM 1. ISSUER AND CLASS OF SECURITY SUBJECT TO THE TRANSACTION.
(a) The information set forth in the sections entitled "Introduction,"
"Summary - Purpose of the Special Meeting" and "- Parties to the Merger" of the
Proxy Statement is incorporated herein by reference.
(b) The information set forth in the sections entitled
"Introduction," "Summary - Purpose of the Special Meeting," "- Record Date
and Quorum," "- Market Prices of Common Stock and Dividends" and "The Special
Meeting - Record Date and Quorum Requirement" of the Proxy Statement is
incorporated herein by reference.
(c) The information set forth in the sections entitled "Summary
- - Market Prices of Common Stock and Dividends" of the Proxy Statement is
incorporated herein by reference.
(d) The information set forth in the sections entitled "Summary
- - Market Prices of Common Stock and Dividends" and "The Merger - Covenants" of
the Proxy Statement is incorporated herein by reference.
(e) Not applicable.
(f) The information set forth in Appendix E of the Proxy Statement is
incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is being filed jointly by the Company (which is the
issuer of the class of equity securities that is the subject of the Rule 13e-3
transaction), the Merger Sub, Thermo Instrument and Thermo Electron.
(a) - (c) The information set forth in the sections entitled "Summary -
Parties to the Merger," "Business of the Company," "Management" and "Certain
Information Concerning the Merger Sub, Thermo Instrument and Thermo Electron,"
and in Appendix D of the Proxy Statement is incorporated herein by reference.
(d) The information set forth in the section entitled "Management," and
in Appendix D of the Proxy Statement is incorporated herein by reference.
9
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(e) During the last five years, none of the Company, the Merger Sub,
Thermo Instrument or Thermo Electron, nor (to the knowledge of each of the
Company, the Merger Sub, Thermo Instrument or Thermo Electron, respectively) any
executive officer or director of the Company, the Merger Sub, Thermo Instrument
or Thermo Electron, respectively, has been convicted in a criminal proceeding
(excluding traffic violations and similar misdemeanors).
(f) During the last five years, none of the Company, the Merger Sub,
Thermo Instrument or Thermo Electron, nor (to the knowledge of each of the
Company, the Merger Sub, Thermo Instrument or Thermo Electron, respectively) any
executive officer or director of the Company, the Merger Sub, Thermo Instrument
or Thermo Electron, respectively, has been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction which resulted in a
judgment, decree or final order (i) enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or (ii) finding a violation with respect to such laws.
(g) The information set forth in Appendix D of the Proxy Statement is
incorporated herein by reference.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS.
(a) (1) The information set forth in the section entitled "Certain
Transactions" of the Proxy Statement is incorporated herein by reference.
(a) (2) - (b) The information set forth in the sections entitled
"Summary - The Merger," "- The Special Committee's and the Board's
Recommendation," "- Purpose and Reasons of Thermo Instrument and Thermo Electron
for the Merger," "Special Factors - Background of the Merger," "- The Special
Committee's and the Board's Recommendation," "- Purpose and Reasons of Thermo
Instrument and Thermo Electron for the Merger" and "Certain Transactions," and
in Appendix E of the Proxy Statement is incorporated herein by reference.
ITEM 4. TERMS OF THE TRANSACTION.
(a) The information set forth in the sections entitled "Introduction,"
"Summary - The Merger," "- Effective Time of the Merger and Payment for Shares,"
"- Assumption of ThermoSpectra Stock Options by Thermo Instrument," "- Conflicts
of Interest," "- Certain Effects of the Merger," "- Conditions to the Merger,
Termination and Expenses," "Special Factors - Conflicts of Interest," "- Certain
Effects of the Merger" and "The Merger," and in Appendix A of the Proxy
Statement is incorporated herein by reference.
(b) The information set forth in the sections entitled "Introduction,"
"Summary - Purpose of the Special Meeting," "- The Merger," "The Merger -
Conversion of Securities," "- Deferred Compensation Plan for Directors" and
"Federal Income Tax Consequences," and Appendix A of the Proxy Statement is
incorporated herein by reference.
10
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ITEM 5. PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE.
(a) The information set forth in the section entitled "Special
Factors - Conduct of ThermoSpectra's Business After the Merger" of the Proxy
Statement is incorporated herein by reference.
(b) The information set forth in the section entitled "Special
Factors - Conduct of ThermoSpectra's Business After the Merger" of the Proxy
Statement is incorporated herein by reference.
(c) The information set forth in the sections entitled "Introduction,"
"Special Factors - Conflicts of Interest" and " - Conduct of ThermoSpectra's
Business After the Merger" of the Proxy Statement is incorporated herein by
reference.
(d) The information set forth in the sections entitled "Summary -
Certain Effects of the Merger," "Special Factors - Certain Effects of the
Merger," and "The Merger - Conversion of Securities" of the Proxy Statement is
incorporated herein by reference.
(e) The information set forth in the sections entitled "Summary -
Certain Effects of the Merger," "Special Factors - Certain Effects of the
Merger" and "- Conduct of ThermoSpectra's Business After the Merger" of the
Proxy Statement is incorporated herein by reference.
(f) The information set forth in the sections entitled "Summary -
Certain Effects of the Merger" and "Special Factors - Certain Effects of the
Merger" of the Proxy Statement is incorporated herein by reference.
(g) The information set forth in the sections entitled "Summary -
Certain Effects of the Merger" and "Special Factors - Certain Effects of the
Merger" of the Proxy Statement is incorporated herein by reference.
ITEM 6. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in the sections entitled "Summary - The
Merger" and "The Merger - Source of Funds" of the Proxy Statement is
incorporated herein by reference.
(b) The information set forth in the sections entitled "Summary -
Opinion of Financial Advisor," "- Conflicts of Interest," "Special Factors -
Opinion of Financial Advisor," "- Conflicts of Interest" and "The Merger -
Expenses" of the Proxy Statement is incorporated herein by reference.
(c) Not applicable.
(d) Not applicable.
11
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ITEM 7. PURPOSE(S), ALTERNATIVES, REASONS AND EFFECTS.
(a) - (c) The information set forth in the sections entitled
"Summary -The Merger," "- The Special Committee's and the Board's
Recommendation;" "- Opinion of Financial Advisor," "- Purpose and Reasons of
Thermo Instrument and Thermo Electron for the Merger," "Special Factors -
Background of the Merger," "- The Special Committee's and the Board's
Recommendation," "- Opinion of Financial Advisor" and "- Purpose and Reasons
of Thermo Instrument and Thermo Electron for the Merger" of the Proxy
Statement is incorporated herein by reference.
(d) The information set forth in the sections entitled "Summary -
The Merger," "Assumption of ThermoSpectra Stock Options by Thermo
Instrument," "- Conflicts of Interest," "- Certain Effects of the Merger,"
"- Federal Income Tax Consequences," "Special Factors - Conflicts of Interest,"
"- Certain Effects of the Merger," "- Conduct of ThermoSpectra's Business
After the Merger," "The Merger - Conversion of Securities," "- Assumption of
ThermoSpectra Stock Options by the Thermo Instrument," "- Deferred
Compensation Plan for Directors" and "Federal Income Tax Consequences" of the
Proxy Statement is incorporated herein by reference.
ITEM 8. FAIRNESS OF THE TRANSACTION.
(a) The information set forth in the sections entitled "Summary - The
Special Committee's and the Board's Recommendation," "- Position of Thermo
Instrument and Thermo Electron as to Fairness of the Merger," "Special Factors -
The Special Committee's and the Board's Recommendation" and "- Position of
Thermo Instrument and Thermo Electron as to Fairness of the Merger" of the Proxy
Statement is incorporated herein by reference.
(b) The information set forth in the sections entitled "Summary - The
Special Committee's and the Board's Recommendation," "- Opinion of Financial
Advisor," "- Position of Thermo Instrument and Thermo Electron as to Fairness of
the Merger," "Special Factors - Background of the Merger," " - The Special
Committee's and the Board's Recommendation," "- Opinion of Financial Advisor"
and "- Position of Thermo Instrument and Thermo Electron as to Fairness of the
Merger" of the Proxy Statement is incorporated herein by reference.
(c) The information set forth in the sections entitled "Introduction,"
"Summary - Vote Required and Revocation of Proxies" and "The Special Meeting -
Voting Procedures" of the Proxy Statement is incorporated herein by reference.
(d) The information set forth in the sections entitled "Summary - The
Special Committee's and the Board's Recommendation," "- Opinion of Financial
Advisor," "Special Factors - Background of the Merger," "- The Special
Committee's and the Board's Recommendation" and "- Opinion of Financial
Advisor," and in Appendix B of the Proxy Statement is incorporated herein by
reference.
(e) The information set forth in the sections entitled "Summary - The
Special Committee's and the Board's Recommendation" and "Special Factors - The
Special
12
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Committee's and the Board's Recommendation" of the Proxy Statement is
incorporated herein by reference.
(f) Not applicable.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND CERTAIN NEGOTIATIONS.
(a) - (c) The information set forth in the sections entitled "Summary -
Opinion of Financial Advisor," "Special Factors - Background of the Merger" and
"- Opinion of Financial Advisor," and in Appendix B of the Proxy Statement is
incorporated herein by reference.
ITEM 10. INTEREST IN SECURITIES OF THE ISSUER.
(a) The information set forth in the sections entitled "Introduction,"
"Summary - Vote Required and Revocation of Proxies," "- The Special Committee's
and the Board's Recommendation," "- Conflicts of Interest," "Special Factors -
Purpose and Reasons of Thermo Instrument and Thermo Electron for the Merger,"
"- Conflicts of Interest," "The Special Meeting - Voting Procedures" and
"Security Ownership of Certain Beneficial Owners and Management," and in
Appendix E of the Proxy Statement is incorporated herein by reference.
(b) The information set forth in Appendix E of the Proxy Statement is
incorporated herein by reference.
ITEM 11. CONTRACTS, ARRANGEMENTS OR UNDERSTANDINGS WITH RESPECT TO THE ISSUER'S
SECURITIES.
The information set forth in the sections entitled "Introduction,"
"Summary - Vote Required and Revocation of Proxies," "- The Merger," "The
Special Meeting - Voting Procedures" and "The Merger," and in Appendix A of the
Proxy Statement is incorporated herein by reference.
ITEM 12. PRESENT INTENTION AND RECOMMENDATION OF CERTAIN PERSONS WITH REGARD TO
THE TRANSACTION.
(a) The information set forth in the sections entitled "Introduction,"
"Summary - Vote Required and Revocation of Proxies" and "The Special Meeting -
Voting Procedures," and in Appendix D of the Proxy Statement is incorporated
herein by reference.
(b) The information set forth in the sections entitled "Summary - The
Special Committee's and the Board's Recommendation," "- Position of Thermo
Instrument and Thermo Electron as to Fairness of the Merger," "Special Factors -
The Special Committee's and the Board's Recommendation" and "- Position of
Thermo Instrument and Thermo Electron as to Fairness of the Merger" of the Proxy
Statement is incorporated herein by reference.
13
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ITEM 13. OTHER PROVISIONS OF THE TRANSACTION.
(a) The information set forth in the sections entitled "Summary -
Rights of Dissenting Stockholders," "The Special Meeting - Voting Procedures"
and "Rights of Dissenting Stockholders," and in Appendix C of the Proxy
Statement is incorporated herein by reference.
(b) Not applicable.
(c) Not applicable.
ITEM 14. FINANCIAL INFORMATION.
(a) The information set forth in the sections entitled "Selected
Financial Information" and "Consolidated Financial Statements" of the Proxy
Statement is incorporated herein by reference.
(b) Not applicable.
ITEM 15. PERSONS AND ASSETS EMPLOYED, RETAINED OR UTILIZED.
(a) The information set forth in the section entitled "The Special
Meeting - Proxy Solicitation" of the Proxy Statement is incorporated herein by
reference.
(b) Not applicable.
ITEM 16. ADDITIONAL INFORMATION.
The entirety of the Proxy Statement is incorporated herein by
reference.
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS.
(a) Not applicable.
(b)(1) Opinion of Tucker Anthony Cleary Gull dated May 21, 1999
(included as Appendix B to the definitive Proxy Statement, which is filed
herewith as Exhibit (d)(3)).
*(b)(2) Presentation dated May 20, 1999 to the Special Committee of
the Board of Directors of ThermoSpectra Corporation by Tucker Anthony Cleary
Gull.
(c) Agreement and Plan of Merger dated as of May 21, 1999 by and among
Thermo Instrument Systems Inc., TS Acquisition Corporation and ThermoSpectra
Corporation, (included as Appendix A to the definitive Proxy Statement, which
is filed herewith as Exhibit (d)(3)).
(d)(1) Copy of Letter to Stockholders.
(d)(2) Copy of Notice of Special Meeting of Stockholders.
(d)(3) Definitive Proxy Statement.
- ------------
* Previously filed.
14
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(d)(4) Form of Proxy.
(e) Text of Section 262 of the General Corporation Law of the State of
Delaware (included as Appendix C to the definitive Proxy Statement, which is
filed herewith as Exhibit (d)(3)).
(f) Definitive Proxy Statement (see Exhibit (d)(3)).
15
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SIGNATURES
After due inquiry and to the best of his knowledge and belief, each of
the undersigned certifies that the information set forth in this Statement is
true, complete and correct.
THERMOSPECTRA CORPORATION
Dated: November 2, 1999 By: /s/ Barry S. Howe
-------------------------------------------
Name: Barry S. Howe
Title: President and Chief Executive Officer
TS ACQUISITION CORPORATION
Dated: November 2, 1999 By: /s/ Earl R. Lewis
-------------------------------------------
Name: Earl R. Lewis
Title: President
THERMO INSTRUMENT SYSTEMS INC.
Dated: November 2, 1999 By: /s/ Earl R. Lewis
-------------------------------------------
Name: Earl R. Lewis
Title: President and Chief Executive Officer
THERMO ELECTRON CORPORATION
Dated: November 2, 1999 By: /s/ Kenneth J. Apicerno
-------------------------------------------
Name: Kenneth J. Apicerno
Title: Treasurer
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
99.17(b)(1) Opinion of Tucker Anthony Cleary Gull dated May
21, 1999 (included as Appendix B to the definitive
Proxy Statement, which is filed herewith as Exhibit
99.17(d)(3)).
*99.17(b)(2) Presentation dated May 20, 1999 to the Special
Committee of the Board of Directors of ThermoSpectra
Corporation by Tucker Anthony Cleary Gull.
99.17(c) Agreement and Plan of Merger dated as of May 21,
1999 by and among Thermo Instrument Systems Inc., TS
Acquisition Corporation and ThermoSpectra
Corporation, (included as Appendix A to the
definitive Proxy Statement, which is filed herewith
as Exhibit 99.17(d)(3)).
99.17(d)(1) Copy of Letter to Stockholders.
99.17(d)(2) Copy of Notice of Special Meeting of
Stockholders.
99.17(d)(3) Definitive Proxy Statement.
99.17(d)(4) Form of Proxy.
99.17(e) Text of Section 262 of the General Corporation Law of
the State of Delaware (included as Appendix C to the
definitive Proxy Statement, which is filed herewith
as Exhibit 99.17(d)(3)).
99.17(f) Definitive Proxy Statement (see Exhibit 99.17(d)(3)).
- ------------
* Previously filed.
<PAGE>
[LOGO]
November 2, 1999
8 EAST FORGE PARKWAY
FRANKLIN, MASSACHUSETTS 02038
Dear Stockholder:
I am pleased to invite you to a Special Meeting of the stockholders of
ThermoSpectra Corporation ("ThermoSpectra") at which you will be asked to
approve an Agreement and Plan of Merger dated as of May 21, 1999 (the "Merger
Agreement") by and among ThermoSpectra, Thermo Instrument Systems Inc., the
parent company of ThermoSpectra ("Thermo Instrument"), and TS Acquisition
Corporation, a newly-formed subsidiary of Thermo Instrument (the "Merger Sub").
The Special Meeting will take place at 10:00 a.m. on Thursday, December 9, 1999
at the offices of Thermo Electron Corporation, 81 Wyman Street, Waltham,
Massachusetts 02454.
Under the terms of the Merger Agreement, the Merger Sub would merge with and
into ThermoSpectra, with ThermoSpectra being the surviving corporation (the
"Merger"). Each issued and outstanding share of ThermoSpectra common stock
(other than shares held by Thermo Instrument, Thermo Electron Corporation and
stockholders who are entitled to and who have perfected their dissenters' rights
under Delaware law) would be converted into the right to receive $16.00 in cash,
without interest (the "Cash Merger Consideration"). ThermoSpectra would become a
private company. The Merger is more fully described in the Merger Agreement,
which is attached as Appendix A to the enclosed Proxy Statement. If you choose
to dissent from approval of the Merger Agreement and wish to seek appraisal of
the fair value of your shares of ThermoSpectra common stock, please refer to the
sections of the Proxy Statement regarding the rights of dissenting stockholders
under Delaware law.
A special committee of the ThermoSpectra Board of Directors (the "Special
Committee"), acting in the interests of the stockholders of ThermoSpectra other
than Thermo Instrument, Thermo Electron Corporation and the directors and
officers of ThermoSpectra, Thermo Instrument and Thermo Electron Corporation
(the "Minority Stockholders"), evaluated the merits of, and negotiated the terms
of, the Merger. The Special Committee received an opinion from its financial
advisor, Tucker Anthony Cleary Gull, as to the fairness of the Merger from a
financial point of view to the Minority Stockholders. Please read carefully the
written opinion of Tucker Anthony Cleary Gull, dated May 21, 1999, which is
attached as Appendix B to the enclosed Proxy Statement. The Special Committee
recommended that ThermoSpectra's Board of Directors approve the Merger
Agreement.
ThermoSpectra's Board of Directors and the Special Committee believe that
the proposed Merger is both substantively and procedurally fair to the Minority
Stockholders of ThermoSpectra, and the Board of Directors unanimously recommends
that stockholders vote "FOR" approval of the Merger Agreement. In considering
the recommendation of the Board of Directors with respect to the Merger
Agreement, stockholders should be aware that five of the seven members of the
ThermoSpectra Board of Directors are either directors of Thermo Instrument or
Thermo Electron Corporation, or employees of Thermo Electron Corporation or its
affiliates, and thus have interests that are in addition to, or different from,
your interests as stockholders of ThermoSpectra.
In reaching their decisions to approve the Merger Agreement, the Special
Committee and ThermoSpectra's Board of Directors considered several factors,
including (i) the Cash Merger Consideration to be received by the Minority
Stockholders in the Merger; (ii) the relationship of the Cash Merger
Consideration to the historical market prices of ThermoSpectra's common stock,
(iii) information concerning the financial performance, condition, business
operations and prospects of ThermoSpectra, (iv) the terms of the Merger
Agreement, (v) the current market trends in the industries in which
ThermoSpectra competes, primarily the semiconductor industry, (vi) the liquidity
that would be realized by the Minority Stockholders from the all-cash offer,
(vii) the written opinion of Tucker Anthony Cleary Gull as to the
<PAGE>
fairness of the Merger from a financial point of view to the Minority
Stockholders and (viii) the positive aspects of ThermoSpectra. For more a more
detailed discussion of these factors, please refer to the sections of the Proxy
Statement regarding the recommendation of the Special Committee and
ThermoSpectra's Board of Directors. In addition, stockholders should be aware
that as a result of the Merger, the entire equity interest in ThermoSpectra
would be beneficially owned by Thermo Electron, directly and indirectly through
Thermo Instrument. The Minority Stockholders would no longer have any interest
in, and would not be stockholders of, ThermoSpectra, and therefore would not
participate in ThermoSpectra's future earnings and potential growth.
Delaware law requires that a majority of the outstanding shares of
ThermoSpectra common stock entitled to vote at the Special Meeting vote in favor
of the Merger Agreement for the Merger Agreement to be approved. Thermo
Instrument, which owns approximately 82% of ThermoSpectra's outstanding common
stock, and Thermo Electron Corporation, which owns approximately 10% of
ThermoSpectra's outstanding common stock, intend to vote their shares in favor
of the Merger Agreement, thus assuring that the Merger Agreement will be
approved. Only stockholders of record at the close of business on October 15,
1999 will receive notice of and be able to vote at the Special Meeting or any
adjournment or adjournments thereof.
The accompanying Proxy Statement provides you with a summary of the proposed
Merger and additional information about the parties involved and their
interests. Please give all this information your careful attention. You can also
obtain other information about ThermoSpectra, Thermo Instrument and Thermo
Electron Corporation from documents filed with the Securities and Exchange
Commission.
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, PLEASE TAKE THE TIME
TO VOTE BY COMPLETING AND MAILING THE ENCLOSED PROXY CARD TO US TODAY. IF YOU
DATE, SIGN AND MAIL YOUR PROXY CARD WITHOUT INDICATING HOW YOU WISH TO VOTE,
YOUR PROXY WILL BE COUNTED AS A VOTE IN FAVOR OF APPROVAL OF THE MERGER
AGREEMENT. YOUR VOTE IS VERY IMPORTANT, REGARDLESS OF THE NUMBER OF SHARES THAT
YOU OWN.
Your Board of Directors believes that the transaction with Thermo Instrument
is in the best interests of ThermoSpectra and its stockholders, including its
Minority Stockholders, and has unanimously approved it. Your Board of Directors
unanimously recommends that stockholders vote for the approval of the Merger
Agreement. On behalf of the Board of Directors, I urge you to sign, date and
return the enclosed Proxy Card today.
Please do not send any stock certificates to us now. Assuming the Merger
Agreement is approved, we will send you instructions concerning the surrender of
your shares.
Thank you for your interest and participation.
Yours very truly,
[SIGNATURE]
BARRY S. HOWE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
<PAGE>
[LOGO]
NOTICE OF SPECIAL MEETING
November 2, 1999
TO THE HOLDERS OF THE COMMON STOCK OF
THERMOSPECTRA CORPORATION
I am pleased to give you notice of and cordially invite you to attend in
person or by proxy the Special Meeting of the stockholders of ThermoSpectra
Corporation, a Delaware corporation (the "Company" or "ThermoSpectra"), which
will be held on Thursday, December 9, 1999, at 10:00 a.m., at the offices of
Thermo Electron Corporation, 81 Wyman Street, Waltham, Massachusetts 02454, and
at any adjournment or adjournments thereof (the "Special Meeting"). At the
Special Meeting, stockholders will:
1. Consider and vote on a proposal to approve an Agreement and Plan of
Merger dated as of May 21, 1999 (the "Merger Agreement") pursuant to
which TS Acquisition Corporation, a newly-formed company (the "Merger
Sub"), will be merged with and into ThermoSpectra (the "Merger"). Upon
the Merger, each stockholder of the Company (other than stockholders who
perfect their dissenters' rights, Thermo Instrument Systems Inc. ("Thermo
Instrument") and Thermo Electron Corporation) will become entitled to
receive $16.00 in cash, without interest, for each outstanding share of
common stock, $.01 par value, of the Company (the "Common Stock") owned
by such stockholder immediately prior to the effective time of the
Merger. A copy of the Merger Agreement is attached as Appendix A to and
is described in the accompanying Proxy Statement.
2. Transact such other business as may properly come before the Special
Meeting.
Only stockholders of record at the close of business on October 15, 1999
will receive notice of and be able to vote at the Special Meeting.
The accompanying Proxy Statement describes the Merger Agreement, the
proposed Merger and the actions to be taken in connection with the Merger. The
Company's Bylaws require that the holders of a majority of the outstanding
shares of Common Stock entitled to vote be present or represented by proxy at
the Special Meeting in order to constitute a quorum for the transaction of
business. It is important that your shares be represented at the Special Meeting
regardless of the number of shares you hold. Whether or not you are able to be
present in person, please sign and return promptly the enclosed Proxy Card in
the accompanying envelope, which requires no postage if mailed in the United
States. You may revoke your proxy in the manner described in the accompanying
Proxy Statement at any time before it is voted at the Special Meeting.
Stockholders who properly demand appraisal prior to the stockholder vote at
the Special Meeting, who do not vote in favor of adoption of the Merger
Agreement and who otherwise comply with the provisions of Section 262 of the
General Corporation Law of the State of Delaware (the "DGCL") will be entitled,
if the Merger is completed, to statutory appraisal of the fair value of their
shares of Common Stock. See "RIGHTS OF DISSENTING STOCKHOLDERS" in the
accompanying Proxy Statement and the full text of Section 262 of the DGCL, which
is attached as Appendix C to and is described in the accompanying Proxy
Statement, for a description of the procedures that you must follow in order to
exercise your appraisal rights.
This Notice, the Proxy Card and Proxy Statement enclosed herewith are sent
to you by order of the Board of Directors.
SANDRA L. LAMBERT
SECRETARY
<PAGE>
WHETHER OR NOT YOU PLAN TO ATTEND, IT IS IMPORTANT THAT YOUR SHARES ARE
REPRESENTED AT THE SPECIAL MEETING. TO APPROVE AND ADOPT THE MERGER AGREEMENT,
THE AFFIRMATIVE VOTE OF A MAJORITY OF THE OUTSTANDING SHARES OF COMMON STOCK
ENTITLED TO VOTE THEREON IS REQUIRED. YOU ARE REQUESTED TO PROMPTLY COMPLETE,
SIGN AND DATE THE ENCLOSED PROXY CARD AND RETURN IT IN THE ENVELOPE PROVIDED.
YOU MAY REVOKE YOUR PROXY AT ANY TIME PRIOR TO ITS EXERCISE IN THE MANNER
DESCRIBED IN THE ATTACHED PROXY STATEMENT. ANY STOCKHOLDER PRESENT AT THE
SPECIAL MEETING MAY REVOKE SUCH HOLDER'S PROXY AND VOTE PERSONALLY ON THE MERGER
AGREEMENT AT THE SPECIAL MEETING.
THE BOARD OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" APPROVAL AND
ADOPTION OF THE MERGER AGREEMENT. IN CONSIDERING THE RECOMMENDATION OF THE BOARD
OF DIRECTORS WITH RESPECT TO THE MERGER, STOCKHOLDERS OTHER THAN THERMO
INSTRUMENT, THERMO ELECTRON CORPORATION AND THE DIRECTORS AND OFFICERS OF THE
COMPANY, THERMO INSTRUMENT AND THERMO ELECTRON CORPORATION (THE "MINORITY
STOCKHOLDERS"), SHOULD BE AWARE THAT CERTAIN OFFICERS AND DIRECTORS OF THE
COMPANY HAVE CERTAIN INTERESTS THAT ARE IN ADDITION TO, OR DIFFERENT FROM, THE
INTERESTS OF THE MINORITY STOCKHOLDERS. SEE "SPECIAL FACTORS--CONFLICTS OF
INTEREST."
IF A PROPERLY EXECUTED PROXY CARD IS SUBMITTED AND NO INSTRUCTIONS ARE
GIVEN, THE SHARES OF COMMON STOCK REPRESENTED BY THAT PROXY WILL BE VOTED "FOR"
APPROVAL OF THE MERGER AGREEMENT.
PLEASE DO NOT SEND YOUR STOCK CERTIFICATES TO THE COMPANY AT THIS TIME.
<PAGE>
PROXY STATEMENT
INTRODUCTION
This Proxy Statement is being furnished to the stockholders of ThermoSpectra
Corporation, a Delaware corporation (the "Company" or "ThermoSpectra"), in
connection with the solicitation by its Board of Directors (the "Board" or the
"Board of Directors") of proxies to be used at a Special Meeting of stockholders
to be held on Thursday, December 9, 1999, at 10:00 a.m., at the offices of
Thermo Electron Corporation, 81 Wyman Street, Waltham, Massachusetts 02454, and
at any adjournment or adjournments thereof (the "Special Meeting"). A committee
of the Board of Directors has fixed the close of business on October 15, 1999 as
the record date (the "Record Date") for the determination of stockholders
entitled to notice of, and to vote at, the Special Meeting.
The Special Meeting has been called to consider and vote on a proposal to
approve an Agreement and Plan of Merger dated as of May 21, 1999 (the "Merger
Agreement"), which is attached to this Proxy Statement as Appendix A. Pursuant
to the Merger Agreement, TS Acquisition Corporation (the "Merger Sub"), a
newly-formed Delaware corporation, will be merged with and into ThermoSpectra
(the "Merger"), with ThermoSpectra being the surviving corporation (the
"Surviving Corporation"). ThermoSpectra is a majority-owned subsidiary of, and
the Merger Sub is a wholly owned subsidiary of, Thermo Instrument Systems Inc.,
a Delaware corporation ("Thermo Instrument"), which in turn is a majority-owned
subsidiary of Thermo Electron Corporation, a Delaware corporation ("Thermo
Electron"). The Merger Sub was organized by Thermo Instrument solely to
facilitate the Merger.
In the Merger, each outstanding share of common stock, $.01 par value, of
ThermoSpectra (the "Common Stock") (other than shares held by stockholders who
are entitled to and who have perfected their Dissenters' Rights (as defined
below), shares held by ThermoSpectra in treasury and shares held by Thermo
Instrument and Thermo Electron) will be canceled and converted automatically
into the right to receive $16.00 in cash, payable to the holder thereof, without
interest. See "THE MERGER." On August 11, 1998, the last trading day prior to
the date Thermo Electron first publicly announced the proposal to take
ThermoSpectra private, the closing price per share of Common Stock reported in
the consolidated transaction reporting system was $9.375. On May 20, 1999, the
last trading day prior to the public announcement of the financial terms of the
proposed Merger, the closing price per share of Common Stock reported in the
consolidated transaction reporting system was $11.50. On November 1, 1999, the
most recent practicable date prior to the printing of this Proxy Statement, the
closing price per share of Common Stock reported in the consolidated transaction
reporting system was $15.75.
The directors and officers of ThermoSpectra immediately prior to the Merger
shall be the initial directors and officers of the Surviving Corporation;
however, Thermo Instrument intends to appoint a board of directors comprised
solely of members of the Surviving Corporation's and Thermo Instrument's
management after the Merger. All options to purchase Common Stock immediately
prior to the Merger shall be assumed by Thermo Instrument and converted into
options to purchase the common stock, $.10 par value, of Thermo Instrument. See
"THE MERGER--Assumption of ThermoSpectra Stock Options by Thermo Instrument."
Under Delaware law, approval of the Merger Agreement at the Special Meeting
will require the affirmative vote of holders of a majority of the outstanding
shares of Common Stock entitled to vote at the Special Meeting. Thermo
Instrument, which owns approximately 82% of the outstanding Common Stock, and
Thermo Electron, which owns approximately 10% of the outstanding Common Stock,
intend to vote their shares in favor of the Merger Agreement, thus assuring that
the Merger Agreement will be approved.
The Board of Directors recommends that stockholders vote "FOR" approval and
adoption of the Merger Agreement. In considering the recommendation of the Board
of Directors with respect to the Merger, stockholders other than Thermo
Instrument, Thermo Electron and the directors and officers of the Company,
Thermo Instrument and Thermo Electron (the "Minority Stockholders"), should be
aware that certain officers and directors of the Company have certain interests
that are in addition to, or different from, the interests of the Minority
Stockholders. See "SPECIAL FACTORS--Conflicts of Interest."
<PAGE>
Stockholders should read and consider carefully the information contained in
this Proxy Statement. This Proxy Statement, the Notice of Special Meeting and
the enclosed Proxy Card are first being mailed to stockholders of the Company on
or about November 4, 1999.
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF
SUCH TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED
IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
2
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
QUESTIONS AND ANSWERS ABOUT THE MERGER...................... 6
SUMMARY..................................................... 8
Date, Time and Place of the Special Meeting............... 8
Purpose of the Special Meeting............................ 8
Record Date and Quorum.................................... 8
Vote Required and Revocation of Proxies................... 8
Parties to the Merger..................................... 9
The Merger................................................ 10
Effective Time of the Merger and Payment for Shares....... 10
Assumption of ThermoSpectra Stock Options by Thermo
Instrument.............................................. 10
The Special Committee's and the Board's Recommendation.... 11
Opinion of Financial Advisor.............................. 12
Purpose and Reasons of Thermo Instrument and Thermo
Electron for the Merger................................. 12
Position of Thermo Instrument and Thermo Electron as to
Fairness of the Merger.................................. 13
Conflicts of Interest..................................... 14
Certain Effects of the Merger............................. 15
Conditions to the Merger, Termination and Expenses........ 15
Federal Income Tax Consequences........................... 16
Rights of Dissenting Stockholders......................... 16
Accounting Treatment...................................... 17
Market Prices of Common Stock and Dividends............... 17
SPECIAL FACTORS............................................. 18
Background of the Merger.................................. 18
The Special Committee's and the Board's Recommendation.... 25
Opinion of Financial Advisor.............................. 29
Purpose and Reasons of Thermo Instrument and Thermo
Electron for the Merger................................. 36
Position of Thermo Instrument and Thermo Electron as to
Fairness of the Merger.................................. 37
Conflicts of Interest..................................... 37
Certain Effects of the Merger............................. 39
Conduct of ThermoSpectra's Business After the Merger...... 40
Conduct of ThermoSpectra's Business if the Merger is Not
Consummated............................................. 40
THE SPECIAL MEETING......................................... 41
Proxy Solicitation........................................ 41
Record Date and Quorum Requirement........................ 41
Voting Procedures......................................... 41
Voting and Revocation of Proxies.......................... 42
Effective Time............................................ 42
THE MERGER.................................................. 43
Conversion of Securities.................................. 43
Assumption of ThermoSpectra Stock Options by Thermo
Instrument.............................................. 44
Deferred Compensation Plan for Directors.................. 44
Transfer of Shares........................................ 45
Conditions................................................ 45
Representations and Warranties............................ 45
</TABLE>
3
<PAGE>
<TABLE>
<S> <C>
Covenants................................................. 46
Indemnification and Insurance............................. 47
Termination, Amendment and Waiver......................... 47
Source of Funds........................................... 48
Expenses.................................................. 48
Accounting Treatment...................................... 48
Regulatory Approvals...................................... 48
RIGHTS OF DISSENTING STOCKHOLDERS........................... 49
FEDERAL INCOME TAX CONSEQUENCES............................. 51
BUSINESS OF THE COMPANY..................................... 52
Overview.................................................. 52
Imaging and Inspection Instruments........................ 52
Temperature Control Instruments........................... 53
Test and Measurement Instruments.......................... 53
Properties................................................ 54
SELECTED FINANCIAL INFORMATION.............................. 55
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS................................. 57
Overview.................................................. 57
Results of Operations..................................... 58
Liquidity and Capital Resources........................... 62
Market Risk............................................... 63
Year 2000................................................. 63
CERTAIN PROJECTED FINANCIAL DATA............................ 66
Projections............................................... 67
Updated Projections....................................... 69
RISK FACTORS................................................ 70
MANAGEMENT.................................................. 73
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT................................................ 75
Principal Stockholder..................................... 75
Management................................................ 75
CERTAIN TRANSACTIONS........................................ 77
CERTAIN INFORMATION CONCERNING THE MERGER SUB, THERMO
INSTRUMENT AND THERMO ELECTRON............................ 81
The Merger Sub............................................ 81
Thermo Instrument......................................... 81
Thermo Electron........................................... 81
INDEPENDENT PUBLIC ACCOUNTANTS.............................. 81
STOCKHOLDER PROPOSALS....................................... 81
ADDITIONAL INFORMATION...................................... 82
AVAILABLE INFORMATION....................................... 82
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............. 83
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS.................. F-1
</TABLE>
4
<PAGE>
<TABLE>
<S> <C>
APPENDICES
APPENDIX A--Agreement and Plan of Merger.................... A-1
APPENDIX B--Opinion of Tucker Anthony Cleary Gull........... B-1
APPENDIX C-- Text of Section 262 of the General Corporation
Law of the State of Delaware.................... C-1
APPENDIX D-- Information Concerning Directors and Executive
Officers of the Company, Thermo Instrument, the
Merger Sub and Thermo Electron.................. D-1
APPENDIX E-- Information Concerning Transactions in the
Common Stock of the Company..................... E-1
</TABLE>
5
<PAGE>
QUESTIONS AND ANSWERS ABOUT THE MERGER
1. WHEN AND WHERE IS THE THERMOSPECTRA SPECIAL MEETING?
The ThermoSpectra Special Meeting will take place on Thursday, December 9,
1999, at 10:00 a.m., at the offices of Thermo Electron, 81 Wyman Street,
Waltham, Massachusetts 02454.
2. WHAT PROPOSALS ARE THERMOSPECTRA STOCKHOLDERS VOTING ON?
ThermoSpectra stockholders are being asked to approve the Merger Agreement.
The Merger Agreement provides that a wholly owned subsidiary of Thermo
Instrument will merge with and into ThermoSpectra and, as a result, Thermo
Instrument and Thermo Electron will collectively own all of the outstanding
Common Stock of ThermoSpectra.
3. WHAT WILL THERMOSPECTRA STOCKHOLDERS RECEIVE IN THE MERGER?
In the Merger, ThermoSpectra stockholders will receive $16.00 in cash per
share of Common Stock. The amount of cash consideration to be paid to
ThermoSpectra stockholders will equal approximately $20.4 million in the
aggregate.
On August 11, 1998, the last trading day prior to the date Thermo Electron
first publicly announced the proposal to take ThermoSpectra private, the closing
price per share of Common Stock reported in the consolidated transaction
reporting system was $9.375. On May 20, 1999, the last trading day prior to the
public announcement of the financial terms of the proposed Merger, the closing
price per share of Common Stock reported in the consolidated transaction
reporting system was $11.50. On November 1, 1999, the most recent practicable
date prior to the printing of this Proxy Statement, the closing price per share
of Common Stock reported in the consolidated transaction reporting system was
$15.75.
4. WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER?
For federal income tax purposes, each stockholder's receipt of $16.00 per
share in the Merger will be treated as a taxable sale of the holder's Common
Stock. Each stockholder's gain or loss per share will equal the difference
between $16.00 and the stockholder's basis in the share of Common Stock.
ThermoSpectra stockholders should consult their tax advisors for a full
understanding of the tax consequences of the Merger. No gain or loss for federal
income tax purposes will be recognized by ThermoSpectra, Thermo Instrument or
the Merger Sub by reason of the Merger.
5. WHY IS THERMOSPECTRA'S BOARD OF DIRECTORS RECOMMENDING APPROVAL OF THE
MERGER AGREEMENT?
ThermoSpectra's Board of Directors believes, based on the recommendation of
its Special Committee, that the proposed transaction is fair to, and in the best
interests of, ThermoSpectra and its stockholders other than Thermo Instrument,
Thermo Electron and the directors and officers of the Company, Thermo Instrument
and Thermo Electron.
6. WHAT RIGHTS DO STOCKHOLDERS HAVE IF THEY OPPOSE THE MERGER?
Stockholders who wish to dissent from the Merger may seek appraisal of the
fair value of their shares, but only if they strictly comply with all of the
procedures under Delaware law that are summarized on pages 49-51 of this Proxy
Statement.
7. WHAT STOCKHOLDER VOTE IS REQUIRED TO APPROVE THE MERGER AGREEMENT?
Under Delaware law, a majority of the outstanding shares of Common Stock
entitled to vote must vote to approve the Merger Agreement. Thermo Instrument
and Thermo Electron collectively own approximately 92% of the outstanding Common
Stock and intend to vote in favor of approval of the Merger Agreement.
Accordingly, the vote approving the Merger Agreement is assured.
6
<PAGE>
8. WHAT HAPPENS IF I DO NOT INSTRUCT A BROKER HOLDING MY SHARES AS TO HOW TO
VOTE THEM OR I ABSTAIN FROM VOTING?
If your shares are held by a broker as nominee, your broker will not be able
to vote your shares without instructions from you. If your broker is unable to
vote your shares or if you abstain, it will have the effect of voting against
approval of the Merger Agreement; however, Thermo Instrument and Thermo Electron
own sufficient shares to satisfy the voting requirement for approval of the
Merger Agreement.
9. WHO IS ENTITLED TO VOTE?
Holders of record of Common Stock at the close of business on October 15,
1999, the record date for the Special Meeting, are entitled to vote at the
Special Meeting.
10. WHEN IS THE MERGER EXPECTED TO BE COMPLETED?
We are working to complete all aspects of the Merger as quickly as possible.
We currently expect the Merger to be completed in December 1999.
11. WHAT DO I NEED TO DO NOW?
After you have carefully read this Proxy Statement, please complete, sign
and mail your Proxy Card in the enclosed return envelope as soon as possible.
That way, your shares can be represented at the Special Meeting. If your shares
are held by a broker as nominee, you should receive a Proxy Card from your
broker.
ThermoSpectra stockholders must return their Proxy Cards before the Special
Meeting in order for their votes to be counted at the Special Meeting.
12. CAN I CHANGE MY VOTE AFTER I HAVE MAILED IN MY SIGNED PROXY CARD?
You may change your vote at any time before the vote takes place at the
Special Meeting. To do so, you can attend the Special Meeting and vote in
person, you can complete and send a new Proxy Card with a later date or you can
send a written notice stating you would like to revoke your proxy. The notice
should be sent to: ThermoSpectra Corporation, c/o Thermo Electron Corporation,
81 Wyman Street, P.O. Box 9046, Waltham, Massachusetts 02454-9046, Attention:
Corporate Secretary.
13. SHOULD I SEND IN MY THERMOSPECTRA STOCK CERTIFICATES NOW?
No. You should continue to hold your certificates for Common Stock. After
the Merger Agreement is approved, you will receive instructions on how to
exchange your shares of Common Stock for cash.
14. WHAT WILL HAPPEN TO THE THERMOSPECTRA STOCK OPTIONS?
Options to purchase Common Stock outstanding on the effective date of the
Merger, whether or not then exercisable, will be assumed by Thermo Instrument
and converted into options to purchase the common stock of Thermo Instrument.
15. WHO SHOULD I CALL IF I HAVE ANY ADDITIONAL QUESTIONS?
You should call ThermoSpectra Investor Relations at (781) 622-1111.
16. WHAT OTHER MATTERS WILL BE VOTED ON AT THE SPECIAL MEETING?
We are not aware of any other matters to be voted on at the Special Meeting.
If any other matters properly come before the Special Meeting, including a
motion to adjourn the Special Meeting for the purpose of soliciting additional
proxies, the persons named on the accompanying Proxy Card will vote the shares
represented by all properly executed proxies on such matters in their
discretion, except that shares represented by proxies that have been voted
"AGAINST" approval of the Merger Agreement will not be used to vote "FOR"
adjournment of the Special Meeting for the purpose of allowing additional time
to solicit additional votes "FOR" the Merger Agreement.
7
<PAGE>
SUMMARY
The following is a summary of certain information contained elsewhere in
this Proxy Statement. Reference is made to, and this Summary is qualified in its
entirety by, the more detailed information contained elsewhere or incorporated
by reference in this Proxy Statement. Stockholders should read this Proxy
Statement and its appendices in their entirety before voting.
DATE, TIME AND PLACE OF THE SPECIAL MEETING
The Special Meeting of stockholders of ThermoSpectra Corporation, a Delaware
corporation (the "Company" or "ThermoSpectra"), will be held on Thursday,
December 9, 1999, at 10:00 a.m., at the offices of Thermo Electron Corporation,
81 Wyman Street, Waltham, Massachusetts 02454.
PURPOSE OF THE SPECIAL MEETING
At the Special Meeting, the stockholders of the Company will consider and
vote on a proposal to approve an Agreement and Plan of Merger dated as of
May 21, 1999 (the "Merger Agreement"), which is attached to this Proxy Statement
as Appendix A. The Merger Agreement provides that TS Acquisition Corporation
(the "Merger Sub"), a newly-formed Delaware corporation that is a wholly owned
subsidiary of Thermo Instrument Systems Inc., a Delaware corporation ("Thermo
Instrument"), would merge with and into ThermoSpectra (the "Merger").
ThermoSpectra would be the surviving corporation (the "Surviving Corporation")
in the Merger, and each outstanding share of common stock, $.01 par value, of
ThermoSpectra (the "Common Stock"), other than shares held by stockholders who
are entitled to and who have perfected their Dissenters' Rights (as defined
below), shares held by ThermoSpectra in treasury and shares held by Thermo
Instrument and Thermo Electron Corporation, a Delaware corporation ("Thermo
Electron"), will be converted automatically into the right to receive $16.00 in
cash, payable to the holders thereof, without interest (the "Cash Merger
Consideration"). See "THE MERGER."
RECORD DATE AND QUORUM
A committee of the Board of Directors of the Company (the "Board" or the
"Board of Directors") has fixed the close of business on October 15, 1999 as the
record date (the "Record Date") for the determination of stockholders entitled
to notice of, and to vote at, the Special Meeting. Each holder of record of
Common Stock at the close of business on the Record Date is entitled to one vote
for each share then held on each matter submitted to a vote of stockholders. At
the close of business on the Record Date, there were 15,390,488 shares of Common
Stock outstanding. The holders of a majority of the outstanding shares of Common
Stock entitled to vote at the Special Meeting must be present in person or
represented by proxy to constitute a quorum for the transaction of business.
Abstentions will be counted as shares present and entitled to vote for purposes
of determining a quorum; however, broker non-votes will not be counted as shares
present and entitled to vote for purposes of determining a quorum. See "THE
SPECIAL MEETING--Record Date and Quorum Requirement."
VOTE REQUIRED AND REVOCATION OF PROXIES
Under Delaware law, holders of a majority of the outstanding shares of
Common Stock entitled to vote at the Special Meeting must vote to approve the
Merger Agreement. For the purposes of this vote, a failure to vote, a vote to
abstain and a broker non-vote will each have the same legal effect as a vote
cast against approval of the Merger Agreement. Thermo Instrument, which owns
approximately 82% of the outstanding Common Stock, and Thermo Electron, which
owns approximately 10% of the outstanding Common Stock, own enough shares of
Common Stock to vote to approve the Merger Agreement under Delaware law without
the vote of any other holders of Common Stock and intend to vote their shares in
favor of the Merger Agreement. See "THE SPECIAL MEETING--Voting Procedures."
A stockholder who returns a proxy may revoke it at any time before the
stockholder's shares are voted at the Special Meeting. The proxy may be revoked
by written notice to the Secretary of the Company
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received prior to the Special Meeting, by executing and returning a later-dated
proxy or by voting by ballot at the Special Meeting. See "THE SPECIAL
MEETING--Voting and Revocation of Proxies."
If a properly executed Proxy Card is submitted and no instructions are
given, the shares of Common Stock represented by that Proxy Card will be voted
"FOR" the approval of the proposed Merger Agreement.
The Board is not aware of any other matters to be voted on at the Special
Meeting. If any other matters properly come before the Special Meeting,
including a motion to adjourn the Special Meeting for the purpose of soliciting
additional proxies, the persons named on the accompanying Proxy Card will vote
the shares represented by all properly executed proxies on such matters in their
discretion, except that shares represented by proxies that have been voted
"AGAINST" approval of the Merger Agreement will not be used to vote "FOR"
adjournment of the Special Meeting for the purpose of allowing additional time
to solicit additional votes "FOR" the Merger Agreement. See "THE SPECIAL
MEETING--Voting Procedures."
PARTIES TO THE MERGER
THE COMPANY
The Company develops, manufactures and markets imaging and inspection,
temperature control and test and measurement instruments. These instruments are
generally combined with proprietary operations and analysis software to provide
industrial and research customers with integrated systems that address their
specific needs. The Company's imaging and inspection products include X-ray
instruments, X-ray sources and X-ray imaging systems, as well as an assortment
of scanning probe and confocal laser scanning microscopes, all of which are used
in a variety of analytical- and inspection-oriented applications. The imaging
and inspection products also include systems that rework and repair printed
circuit boards that have failed quality control inspection. The Company's
temperature control instruments include temperature control systems for
analytical, laboratory, industrial, research and development, laser and
semiconductor applications. The Company's test and measurement instruments
include data-acquisition systems, digital oscilloscopes and recording systems
used primarily in product development and process monitoring settings.
The principal executive offices of the Company are located at 8 East Forge
Parkway, Franklin, Massachusetts 02038, and its telephone number is
(508) 553-5155. See "BUSINESS OF THE COMPANY."
THE MERGER SUB
The Merger Sub is a newly-formed Delaware corporation organized at the
direction of Thermo Instrument for the sole purpose of effecting the Merger and
has not conducted any prior business.
The principal executive offices of the Merger Sub are located at 81 Wyman
Street, P.O. Box 9046, Waltham, Massachusetts 02454-9046, and its telephone
number is (781) 622-1000. See "CERTAIN INFORMATION CONCERNING THE MERGER SUB,
THERMO INSTRUMENT AND THERMO ELECTRON."
THERMO INSTRUMENT
Thermo Instrument develops, manufactures and markets analytical instruments
used to identify complex chemical compounds, toxic metals and other elements in
a broad range of liquids and solids. Thermo Instrument also develops and
manufactures instruments used to monitor radioactivity and air pollution; life
sciences instruments and consumables; and imaging, inspection, measurement and
control instruments. These products are used for multiple applications in a
range of industries, including industrial processing, food and beverage
production, life sciences research and medical diagnostics.
The principal executive offices of Thermo Instrument are located at 81 Wyman
Street, P.O. Box 9046, Waltham, Massachusetts 02454-9046, and its telephone
number is (781) 622-1000. See "CERTAIN
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INFORMATION CONCERNING THE MERGER SUB, THERMO INSTRUMENT AND THERMO ELECTRON."
THE MERGER
The Merger Agreement provides that, subject to satisfaction of certain
conditions, the Merger Sub will be merged with and into ThermoSpectra, and that
following the Merger, the separate existence of the Merger Sub will cease and
ThermoSpectra will continue as the Surviving Corporation. At the effective time
of the Merger, which shall be the date and time of filing of the Certificate of
Merger with the Secretary of State of the State of Delaware (the "Effective
Time") (and the date on which the Effective Time occurs being the "Effective
Date"), and subject to the terms and conditions set forth in the Merger
Agreement, each share of issued and outstanding Common Stock (other than shares
as to which Dissenters' Rights (as defined below) are properly perfected and not
withdrawn, shares held by ThermoSpectra in treasury and shares held by Thermo
Instrument and Thermo Electron) will, by virtue of the Merger, be automatically
canceled and converted into the right to receive the Cash Merger Consideration.
As a result of the Merger, ThermoSpectra's Common Stock will no longer be
publicly traded and will be 100% owned by Thermo Instrument and Thermo Electron.
The aggregate consideration payable in the Merger, assuming no Dissenters'
Rights (as defined below) are exercised, is approximately $20.4 million. See
"THE MERGER."
EFFECTIVE TIME OF THE MERGER AND PAYMENT FOR SHARES
The Effective Time is currently expected to occur as soon as practicable
after the Special Meeting, subject to approval of the Merger Agreement at the
Special Meeting and satisfaction or waiver of the terms and conditions of the
Merger Agreement. See "--Conditions to the Merger, Termination and Expenses" and
"THE MERGER--Conditions." Detailed instructions with regard to the surrender of
stock certificates, together with a letter of transmittal, will be forwarded to
stockholders by the Company's transfer agent, American Stock Transfer & Trust
Company (the "Payment Agent"), promptly following the Effective Time.
Stockholders should not submit their stock certificates to the Payment Agent
until they have received such materials. The Payment Agent will send payment of
the Cash Merger Consideration to stockholders as promptly as practicable
following receipt by the Payment Agent of their stock certificates and other
required documents. No interest will be paid or accrued on the cash payable upon
the surrender of stock certificates. See "THE MERGER--Conversion of Securities."
Stockholders should not send any stock certificates to the Company or the
Payment Agent at this time.
ASSUMPTION OF THERMOSPECTRA STOCK OPTIONS BY THERMO INSTRUMENT
At the Effective Time, each outstanding option to purchase shares of Common
Stock (each, a "ThermoSpectra Stock Option") under the ThermoSpectra Stock
Option Plans (as defined below), whether or not exercisable, will be assumed by
Thermo Instrument. Each ThermoSpectra Stock Option so assumed by Thermo
Instrument will continue to have, and be subject to, the same terms and
conditions set forth in the applicable ThermoSpectra Stock Option Plan
immediately prior to the Effective Time, except that (i) each ThermoSpectra
Stock Option will be exercisable (or will become exercisable in accordance with
its terms) for that number of whole shares of common stock, $.10 par value per
share, of Thermo Instrument ("Thermo Instrument Common Stock") equal to the
product of the number of shares of Common Stock that were issuable upon exercise
of such ThermoSpectra Stock Option immediately prior to the Effective Time
multiplied by a fraction (the "Exchange Ratio"), the numerator of which is the
Cash Merger Consideration and the denominator of which is the closing price (the
"Closing Price") of Thermo Instrument Common Stock on the day immediately
preceding the Effective Date as reported by the American Stock Exchange, Inc.
(the "AMEX"), rounded down to the nearest whole number of shares of Thermo
Instrument Common Stock, and (ii) the per share exercise price for the shares of
Thermo Instrument Common Stock issuable upon exercise of each such assumed
ThermoSpectra Stock Option will be equal to the quotient determined by dividing
the exercise price per share of Common Stock at which
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such ThermoSpectra Stock Option was exercisable immediately prior to the
Effective Time by the Exchange Ratio, rounded up to the nearest whole cent.
At the Effective Time, each outstanding option to purchase shares of Common
Stock (each a "ThermoSpectra ESPP Stock Option") under the ThermoSpectra
Employees' Stock Purchase Plan (the "ThermoSpectra ESPP") will also be assumed
by Thermo Instrument. Each ThermoSpectra ESPP Stock Option so assumed by Thermo
Instrument will continue to have, and be subject to, the same terms and
conditions as set forth in the ThermoSpectra ESPP immediately prior to the
Effective Time except that (i) the assumed option shall be exercisable for
shares of Thermo Instrument Common Stock; (ii) the purchase price per share of
Thermo Instrument Common Stock shall be the lower of (a) 85% of (x) the per
share market value of the Common Stock on the grant date of the option divided
by (y) the Exchange Ratio, with the resulting price rounded up to the nearest
whole cent, and (b) 85% of the market value of Thermo Instrument Common Stock as
of the exercise date of the option; and (iii) the $25,000 limit under
Section 9.2(i) of the ThermoSpectra ESPP shall be applied by taking into account
Thermo Instrument's assumption of the ThermoSpectra ESPP Stock Options in
accordance with Section 423(b)(8) of the Internal Revenue Code of 1986, as
amended, and applicable regulations.
See "THE MERGER--Assumption of ThermoSpectra Stock Options by Thermo
Instrument."
THE SPECIAL COMMITTEE'S AND THE BOARD'S RECOMMENDATION
In December 1998, the Board appointed a committee (the "Special Committee")
of two directors, Messrs. Joseph A. Baute and David J. Beaubien (who are not
officers or employees of the Company, Thermo Instrument, the Merger Sub or
Thermo Electron and who are not directors of Thermo Electron, Thermo Instrument
or the Merger Sub), to act on behalf of, and in the interests of, the
stockholders of the Company other than Thermo Instrument, Thermo Electron and
the directors and officers of the Company, Thermo Instrument and Thermo Electron
(the "Minority Stockholders") in evaluating the merits of, and negotiating the
terms of, any proposed transaction with Thermo Instrument. The members of the
Special Committee hold options to acquire an aggregate of 2,000 shares of Common
Stock, at exercise prices of $15.33, which will be assumed by Thermo Instrument
and converted into options to acquire shares of Thermo Instrument Common Stock
on the same terms as all the other holders of ThermoSpectra Stock Options. See
"THE MERGER--Assumption of ThermoSpectra Stock Options by Thermo Instrument."
Further, deferred units equal to 103 shares of Common Stock have accumulated
under the Company's deferred compensation plan for directors for the benefit of
Mr. Baute, which units will be converted into the right to receive the Cash
Merger Consideration per unit for an aggregate cash payment of $1,648. See "THE
MERGER--Deferred Compensation Plan for Directors."
The members of the Special Committee unanimously recommended to the
Company's Board that the Merger Agreement, with the terms and provisions they
negotiated, be approved and that it be recommended to the stockholders of the
Company for adoption and approval. In connection with its recommendation, the
Special Committee considered the opinion of its financial advisor, Tucker
Anthony Cleary Gull ("Tucker Anthony"), that the consideration of $16.00 per
share in cash payable under the Merger Agreement is fair, from a financial point
of view, to the Minority Stockholders. See "SPECIAL FACTORS--Opinion of
Financial Advisor." As part of their deliberations, the members of the Special
Committee determined that the Merger is substantively and procedurally fair to
the Minority Stockholders.
Following the unanimous recommendation of the Special Committee, the Board
of Directors unanimously approved the Merger Agreement, declared its
advisability and recommended that the stockholders of the Company approve the
Merger Agreement. In connection with its recommendation, the Board also
considered the opinion of Tucker Anthony and adopted the analysis of the Special
Committee with regard to both the substantive and procedural fairness of the
Merger. In reaching their respective decisions to recommend approval of the
Merger Agreement, the Special Committee and the Board also considered the
factors set forth elsewhere in this Proxy Statement. See "SPECIAL FACTORS--The
Special Committee's and the Board's Recommendation."
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In considering the recommendation of the Board of Directors with respect to
the Merger, the Minority Stockholders should be aware that certain officers and
directors of the Company have certain interests that are in addition to, or
different from, the interests of the Minority Stockholders. See "SPECIAL
FACTORS--Conflicts of Interest."
The Board unanimously recommends that the ThermoSpectra stockholders vote
"FOR" approval of the Merger Agreement.
OPINION OF FINANCIAL ADVISOR
Tucker Anthony provided its oral opinion to the Special Committee on
May 20, 1999, that, as of the date of such opinion, the consideration of $16.00
per share in cash payable under the Merger Agreement was fair, from a financial
point of view, to the Minority Stockholders of the Company. Tucker Anthony
subsequently confirmed its oral opinion in writing on May 21, 1999. The full
text of the written opinion of Tucker Anthony dated May 21, 1999, which sets
forth assumptions made, matters considered and limitations on the review
undertaken in connection with the opinion, is attached hereto as Appendix B and
is incorporated herein by reference. The opinion of Tucker Anthony referred to
herein does not constitute a recommendation as to how any stockholder should
vote with respect to the Merger Agreement. Holders of shares of Common Stock are
urged to, and should, read the opinion in its entirety. See "SPECIAL
FACTORS--Opinion of Financial Advisor."
The Special Committee retained Tucker Anthony as financial advisor to assist
it in evaluating the merits of, and negotiating the terms of, any proposed
transaction with Thermo Instrument. Pursuant to the terms of Tucker Anthony's
engagement letter dated February 2, 1999 with the Special Committee, the Company
paid Tucker Anthony a retainer fee of $50,000 and a fee of $100,000 for the
preparation and delivery of its written fairness opinion dated May 21, 1999
(which fee was payable regardless of the conclusions expressed therein). In
addition, the Company has agreed to pay Tucker Anthony an additional $75,000 if
the Merger is consummated. The Company has also agreed to reimburse Tucker
Anthony up to $10,000 for its out-of-pocket expenses, including the reasonable
fees and disbursements of its counsel, arising in connection with its
engagement, and to indemnify Tucker Anthony, its affiliates and their respective
directors, officers, employees and agents to the fullest extent permitted by law
against certain liabilities, including liabilities under the federal securities
laws, relating to or arising out of its engagement, except for liabilities found
to have resulted from the bad faith, gross negligence or intentional or reckless
misconduct of Tucker Anthony.
PURPOSE AND REASONS OF THERMO INSTRUMENT AND THERMO ELECTRON FOR THE MERGER
The purpose of Thermo Instrument and Thermo Electron for engaging in the
transactions contemplated by the Merger Agreement is for Thermo Instrument to
acquire all of the outstanding shares of Common Stock, other than the shares
held by Thermo Electron. In determining to acquire such shares of Common Stock
at this time, Thermo Instrument and Thermo Electron considered the following
factors: (i) the past performance of ThermoSpectra and its future business
prospects, as well as the potential benefits to ThermoSpectra's business if it
were to become part of a larger business unit; (ii) the latest market trends in
the markets in which the Company competes, primarily the cyclicality of the
semiconductor industry; (iii) the substantial debt owed by the Company to,
primarily, Thermo Electron; (iv) the reduction in the amount of public
information available to competitors about ThermoSpectra's business that would
result from the termination of the Company's obligations under the Securities
and Exchange Commission (the "Commission") reporting requirements; (v) the
elimination of additional burdens on management associated with public reporting
and other tasks resulting from the Company's public company status, including,
for example, the dedication of time and resources of management and of the Board
to stockholder and analyst inquiries, and investor and public relations;
(vi) the decrease in costs, particularly those associated with being a public
company (for example, as a privately-held entity, the Company would no longer be
required to file quarterly and annual reports with the Commission or publish and
distribute to its stockholders annual reports and proxy statements), that Thermo
Electron and Thermo
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Instrument anticipate could result in savings of approximately $450,000 per
year, which estimate includes the approximate cost of the associated legal and
accounting fees; and (vii) the greater flexibility that the Company's management
would have to focus on long-term business goals, as opposed to quarterly
earnings, as a private company.
Thermo Instrument and Thermo Electron also considered the advantages and
disadvantages of certain alternatives to taking ThermoSpectra private, including
(i) selling their respective equity interests in the Company and (ii) leaving
ThermoSpectra as a public majority-owned subsidiary of Thermo Instrument. The
first alternative, that of selling their respective equity interests in the
Company, was briefly considered by Thermo Electron management, but it was not an
alternative that was pursued as reasonable, given that Thermo Electron did not
want to sell its equity interest, and did not want Thermo Instrument to sell its
equity interest, in the Company. The advantages to leaving ThermoSpectra as a
majority-owned, public subsidiary that Thermo Instrument and Thermo Electron
considered included (i) the ability of Thermo Instrument to invest the cash that
would be required to buy the minority stockholder interest in ThermoSpectra in
alternative uses and (ii) maintaining the potential access ThermoSpectra has to
capital in the public markets as a public company. The disadvantages to leaving
ThermoSpectra as a majority-owned, public subsidiary that Thermo Instrument and
Thermo Electron considered included (i) the burden on ThermoSpectra of
substantial debt owed primarily to Thermo Electron, (ii) the costs associated
with being a public company and (iii) the public information available to
competitors about ThermoSpectra's business as result of its filing obligations
with the Commission.
Thermo Instrument and Thermo Electron also considered the number of
ThermoSpectra shares held by the Minority Stockholders, recent trends in the
price of the Common Stock and the relative lack of liquidity for the Common
Stock. Thermo Instrument and Thermo Electron reviewed the net overall cost of
the transaction and its benefits, including its contribution to Thermo
Instrument's earnings. Thermo Instrument also explored alternative uses for the
cash proposed to be used for this transaction. After consideration of these
various factors, Thermo Instrument and Thermo Electron decided to make a
proposal to ThermoSpectra to acquire for cash, through a merger, all of the
outstanding shares of Common Stock that Thermo Instrument and Thermo Electron
did not own at a price of $16.00 per share, which represented a premium of
(i) approximately 71% over the closing price of the Common Stock reported in the
consolidated transaction reporting system on August 11, 1998, the day
immediately prior to Thermo Electron's first public announcement of the proposal
to take ThermoSpectra private and (ii) approximately 39% over the closing price
of the Common Stock reported in the consolidated transaction reporting system on
May 20, 1999, the day immediately prior to the public announcement of the
financial terms of Thermo Instrument's proposal. Thermo Instrument proposed to
structure the transaction as a cash merger in order to transfer ownership of the
equity interest in the Company in a single transaction and provide the
stockholders other than Thermo Instrument and Thermo Electron with prompt
payment in cash in exchange for their shares. See "SPECIAL FACTORS--Background
of the Merger" and "SPECIAL FACTORS--Purpose and Reasons of Thermo Instrument
and Thermo Electron for the Merger."
Thermo Electron beneficially owns, in the aggregate, directly and indirectly
through Thermo Instrument, approximately 92% of the outstanding Common Stock.
See "SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT--Principal
Stockholder."
POSITION OF THERMO INSTRUMENT AND THERMO ELECTRON AS TO FAIRNESS OF THE MERGER
Thermo Instrument and Thermo Electron considered the analyses and findings
of (i) Tucker Anthony with respect to the fairness, from a financial point of
view, of the consideration of $16.00 per share in cash payable under the Merger
Agreement to the Minority Stockholders (see "SPECIAL FACTORS--Opinion of
Financial Advisor") and (ii) the Special Committee and the Board with respect to
the fairness of the Merger to the Minority Stockholders (see "SPECIAL
FACTORS--The Special Committee's and the Board's Recommendation"). As of the
date of the Merger Agreement, each of Thermo Instrument and Thermo Electron
adopted the analyses and findings of the Special Committee and the Board with
respect
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to the fairness of the Merger. Based on the analyses and findings of Tucker
Anthony and the Special Committee, Thermo Instrument and Thermo Electron believe
that the Merger is both procedurally and substantively fair to the Minority
Stockholders and that the Cash Merger Consideration is fair to the Minority
Stockholders from a financial point of view. Neither Thermo Instrument nor
Thermo Electron attached specific weights to any factors in reaching its
respective belief as to fairness. Thermo Instrument and Thermo Electron are not
making any recommendation as to how the Minority Stockholders should vote on the
Merger Agreement. See "SPECIAL FACTORS--Position of Thermo Instrument and Thermo
Electron as to Fairness of the Merger."
The Minority Stockholders should be aware that certain officers and
directors of Thermo Instrument and Thermo Electron are also officers and
directors of the Company and have certain interests that are in addition to, or
different from, the interests of the Minority Stockholders. See "SPECIAL
FACTORS--Conflicts of Interest." Thermo Instrument and Thermo Electron
considered these potential conflicts of interest and based in part thereon,
Thermo Instrument's proposed offer was conditioned on, among other things, the
approval of the Merger by the Special Committee and the receipt by the Special
Committee of a fairness opinion from an investment banking firm.
CONFLICTS OF INTEREST
In considering the recommendation of the Board with respect to the Merger,
stockholders should be aware that certain officers and directors of
ThermoSpectra have interests in connection with the Merger that present them
with actual or potential conflicts of interest, which are described in more
detail under "SPECIAL FACTORS--Conflicts of Interest."
THE SPECIAL COMMITTEE
Mr. Baute and Mr. Beaubien, members of the Special Committee, hold options
to acquire an aggregate of 2,000 shares of Common Stock, at exercise prices of
$15.33, which will be assumed by Thermo Instrument and converted into options to
acquire shares of Thermo Instrument Common Stock on the same terms as all the
other holders of ThermoSpectra Stock Options. See "THE MERGER--Assumption of
ThermoSpectra Stock Options by Thermo Instrument." Further, deferred units equal
to 103 shares of Common Stock have accumulated under the Company's deferred
compensation plan for directors for the benefit of Mr. Baute, which units will
be converted into the right to receive the Cash Merger Consideration per unit
for an aggregate cash payment of $1,648. See "THE MERGER--Deferred Compensation
Plan for Directors." The Special Committee formally met 16 times, either in
person or telephonically, from December 1998 through the date of this Proxy
Statement and, in addition, had numerous informal discussions and consultations
in person and telephonically. As compensation for serving on the Special
Committee, the Board has authorized that each member of the Special Committee
receive a one-time special retainer fee of $20,000 and additional fees of $1,000
for each meeting attended in person and $500 for each meeting attended
telephonically. Mr. Baute is also a member of the board of directors of Metrika
Systems Corporation, a majority-owned subsidiary of Thermo Instrument, and
Mr. Beaubien is also a member of the board of directors of ONIX Systems Inc., a
majority-owned subsidiary of Thermo Instrument. See "SPECIAL FACTORS--Conflicts
of Interest" and "MANAGEMENT."
THE THERMOSPECTRA DIRECTORS AND EXECUTIVE OFFICERS
The members of the Board of Directors (other than the members of the Special
Committee) and the executive officers of ThermoSpectra own in the aggregate
40,610 shares of Common Stock and will receive a payment for their shares of
Common Stock in the aggregate amount of $649,760 upon consummation of the
Merger. In addition, such Board members and executive officers hold options to
acquire an aggregate of 362,300 shares of Common Stock, with exercise prices
ranging from $9.53 to $15.33, which will be assumed by Thermo Instrument and
converted into options to acquire shares of Thermo Instrument Common Stock on
the same terms as all the other holders of ThermoSpectra Stock Options. See "THE
MERGER--Assumption of ThermoSpectra Stock Options by Thermo Instrument."
Further, deferred units equal to 22 shares of Common Stock have accumulated
under the Company's deferred compensation
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plan for directors for the benefit of Elias P. Gyftopoulos, which units will be
converted into the right to receive the Cash Merger Consideration per unit for
an aggregate cash payment of $352. See "THE MERGER--Deferred Compensation Plan
for Directors." Such Board members and executive officers also beneficially own
shares of common stock of Thermo Instrument and Thermo Electron as set forth in
more detail under "SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT--Management." Further, certain members of the Board and certain
executive officers hold directorship or officer positions with Thermo Instrument
and/or Thermo Electron. See "MANAGEMENT."
INDEMNIFICATION AND INSURANCE
The Merger Agreement provides that for a period of six years after the
Effective Time, Thermo Instrument will, and will cause the Surviving Corporation
to, fulfill and honor in all respects the indemnification obligations of
ThermoSpectra, pursuant to ThermoSpectra's Certificate of Incorporation and
Bylaws, each as in effect immediately prior to the Effective Time, to those
individuals who were directors, including the members of the Special Committee,
or officers of ThermoSpectra at the Effective Time. In addition, the directors
and officers of the Company will be provided with continuing directors' and
officers' liability insurance coverage for a period of six years following the
Merger, subject to certain limitations. See "SPECIAL FACTORS--Conflicts of
Interest" and "THE MERGER--Indemnification and Insurance."
CERTAIN EFFECTS OF THE MERGER
As a result of the Merger, the entire equity interest in the Company will be
beneficially owned by Thermo Electron, directly and indirectly through Thermo
Instrument. Thermo Electron and Thermo Instrument will have complete control
over the conduct of the Company's business and will have 100% interest in the
net book value and net earnings of the Company and any future increases in the
value of the Company. Thermo Instrument's and Thermo Electron's combined
ownership of the Company prior to the transaction contemplated herein aggregated
approximately 92%. Upon completion of this transaction, Thermo Instrument's and
Thermo Electron's aggregate interest in the Company's net book value of
$129.7 million on July 3, 1999 and net earnings of $1.8 million and $0.6 million
for the year ended January 2, 1999 and the six months ended July 3, 1999,
respectively, would increase from approximately 92% of such amounts to 100% of
such amounts. The Minority Stockholders will no longer have any interest in, and
will not be stockholders of, ThermoSpectra and therefore will not participate in
ThermoSpectra's future earnings and potential growth and will no longer bear the
risk of any decreases in the value of the Company. Instead, the stockholders of
the Company other than Thermo Instrument, Thermo Electron and holders who
perfect their Dissenters' Rights (as defined below) will have the right to
receive the Cash Merger Consideration for each share held.
In addition, the Common Stock will no longer be traded on the AMEX and price
quotations with respect to sales of shares in the public market will no longer
be available. The registration of the Common Stock under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), will be terminated, and this
termination will eliminate the Company's obligation to file periodic financial
and other information with the Commission and will make most other provisions of
the Exchange Act inapplicable. See "SPECIAL FACTORS--Certain Effects of the
Merger."
CONDITIONS TO THE MERGER, TERMINATION AND EXPENSES
Each party's obligation to effect the Merger is subject to satisfaction of a
number of conditions, including with respect to one or both parties: (i) the
Merger Agreement shall have been approved and adopted by the affirmative vote of
the holders of a majority of the outstanding shares of Common Stock entitled to
vote thereon in accordance with the provisions of Section 251 of the General
Corporation Law of the State of Delaware (the "DGCL"); (ii) no court,
administrative agency or commission or other governmental or regulatory body or
authority or instrumentality shall have enacted, issued, promulgated, enforced
or entered any statute, rule, regulation, executive order, decree, injunction or
other order that is
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in effect and that has the effect of making the Merger illegal or otherwise
prohibiting consummation of the Merger; (iii) the representations and warranties
of the parties shall be true and correct in all material respects as of the
Effective Time, except as permitted by the Merger Agreement; and (iv) each of
the parties shall have performed or complied in all material respects with all
agreements and covenants required by the Merger Agreement to be performed by
them on or prior to the Effective Time. Certain conditions that have not been
satisfied may be waived by the other party. See "THE MERGER--Conditions." Even
if the stockholders approve the Merger Agreement, there can be no assurance that
the Merger will be consummated.
At any time prior to the Effective Time, whether before or after approval of
the Merger Agreement by the stockholders of ThermoSpectra, the Merger Agreement
may be terminated by the mutual written consent of the board of directors of
Thermo Instrument and the Board of Directors of ThermoSpectra (upon approval of
the Special Committee). In addition, either Thermo Instrument or ThermoSpectra
(upon approval of the Special Committee), in accordance with the provisions of
the Merger Agreement, may terminate the Merger Agreement prior to the Effective
Time, whether before or after approval of the Merger Agreement by the
stockholders of ThermoSpectra, if (i) the Merger has not been consummated by
October 31, 1999, subject to certain exceptions, (ii) a court of competent
jurisdiction or governmental, regulatory or administrative agency or commission
issues an order, decree or ruling or takes any other action enjoining,
restraining or otherwise prohibiting the Merger and such order, decree or ruling
is final and nonappealable or (iii) the approval of the stockholders of
ThermoSpectra necessary to consummate the Merger has not been obtained, subject
to certain exceptions. See "THE MERGER--Termination, Amendment and Waiver."
In addition, Thermo Instrument may terminate the Merger Agreement prior to
the Effective Time, whether before or after approval of the Merger Agreement by
the stockholders of ThermoSpectra, if ThermoSpectra breaches any representation,
warranty, covenant or agreement and fails to cure such breach within ten
business days after written notice of such breach from Thermo Instrument.
ThermoSpectra may terminate the Merger Agreement prior to the Effective Time,
whether before or after approval of the Merger Agreement by the stockholders of
ThermoSpectra, if (i) ThermoSpectra's Board of Directors, upon approval of the
Special Committee, determines in good faith on the advice of outside legal
counsel that the Board's fiduciary duties under applicable law require it to do
so or (ii) Thermo Instrument breaches any representation, warranty, covenant or
agreement and fails to cure such breach within ten business days after written
notice of such breach from ThermoSpectra. See "THE MERGER--Termination,
Amendment and Waiver."
Each of the parties has agreed to pay its own costs and expenses in
connection with the Merger Agreement, whether or not the Merger is consummated.
See "THE MERGER--Expenses."
FEDERAL INCOME TAX CONSEQUENCES
For federal income tax purposes, the receipt of the Cash Merger
Consideration by holders of Common Stock pursuant to the Merger will be a
taxable sale of the holder's Common Stock. All holders of Common Stock should
consult their tax advisors to determine the effect of the Merger under federal,
state, local and foreign tax laws. See "FEDERAL INCOME TAX CONSEQUENCES."
RIGHTS OF DISSENTING STOCKHOLDERS
Any stockholder of ThermoSpectra who does not vote in favor of the proposal
to approve the Merger Agreement and who complies strictly with the applicable
provisions of Section 262 of the DGCL has the right to dissent and be paid cash
for the fair value of such holder's shares of Common Stock ("Dissenters'
Rights"). The applicable provisions of Section 262 of the DGCL are attached to
this Proxy Statement as Appendix C. To perfect Dissenters' Rights with respect
to the Merger, a ThermoSpectra stockholder must follow the procedures set forth
therein precisely. These procedures are summarized in this Proxy Statement under
"RIGHTS OF DISSENTING STOCKHOLDERS."
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Shares of Common Stock held by persons properly exercising Dissenters'
Rights will not be converted into the Cash Merger Consideration in the Merger
and after the Effective Time will represent only the right to receive such
consideration as is determined to be due such dissenting stockholder pursuant to
Section 262 of the DGCL. If after the Effective Time any dissenting stockholder
(i) fails to perfect or loses such right to payment or appraisal pursuant to
Section 262 of the DGCL or (ii) withdraws such demand for appraisal within
60 days after the Effective Date pursuant to Section 262 of the DGCL, each share
of Common Stock of such stockholder shall be treated as a share that had been
converted as of the Effective Time into the right to receive the Cash Merger
Consideration.
ACCOUNTING TREATMENT
The Merger will be accounted for as the acquisition of a minority interest
by Thermo Instrument, using the purchase method of accounting.
MARKET PRICES OF COMMON STOCK AND DIVIDENDS
The Common Stock is traded on the AMEX (symbol: THS). The following table
sets forth, for the periods indicated, the high and low sales prices of the
Company's Common Stock as reported in the consolidated transaction reporting
system.
<TABLE>
<CAPTION>
HIGH LOW
-------- --------
<S> <C> <C>
1997
First Quarter............................................ $15.125 $11.75
Second Quarter........................................... 14.50 11.375
Third Quarter............................................ 13.625 9.75
Fourth Quarter........................................... 13.625 9.00
1998
First Quarter............................................ 10.75 8.625
Second Quarter........................................... 12.75 8.625
Third Quarter............................................ 12.00 9.25
Fourth Quarter........................................... 11.75 8.25
1999
First Quarter............................................ 12.00 10.00
Second Quarter........................................... 15.875 9.6875
Third Quarter............................................ 16.00 15.50
Fourth Quarter (through November 1, 1999)................ 15.875 15.625
</TABLE>
On August 11, 1998, the last trading day prior to the date Thermo Electron
first publicly announced the proposal to take ThermoSpectra private, the high,
low and closing sales price per share of Common Stock reported in the
consolidated transaction reporting system was $9.375, $9.25 and $9.375,
respectively. On May 20, 1999, the last trading day prior to the public
announcement of the financial terms of the proposed Merger, the high, low and
closing sales price per share of Common Stock reported in the consolidated
transaction reporting system was $11.50, $11.25 and $11.50, respectively. On
November 1, 1999, the most recent practicable date prior to the printing of this
Proxy Statement, the high, low and closing sales prices per share of Common
Stock reported in the consolidated transaction reporting system were $15.875,
$15.75 and $15.75, respectively.
As of October 15, 1999, there were 180 holders of record of Common Stock and
approximately 800 persons or entities holding in nominee name.
The Company has never paid any cash dividends on its Common Stock. Pursuant
to the Merger Agreement, the Company has agreed not to pay any dividends on the
Common Stock prior to the earlier of the termination of the Merger Agreement or
the Effective Time.
17
<PAGE>
SPECIAL FACTORS
BACKGROUND OF THE MERGER
During the beginning of August 1998, Thermo Instrument's and Thermo
Electron's senior management initially considered Thermo Instrument's
acquisition of the minority stockholder interest in ThermoSpectra in connection
with a proposed corporate reorganization of Thermo Electron and certain of its
subsidiaries that was publicly announced on August 12, 1998. The goals of Thermo
Electron's proposed corporate reorganization include (i) reducing the complexity
of Thermo Electron's corporate structure, (ii) consolidating and strategically
realigning certain businesses to enhance their competitive market positions and
improve management coordination, and (iii) increasing liquidity in the public
markets by providing larger market floats for Thermo Electron's publicly traded
subsidiaries. If Thermo Electron's reorganization plan is completed as proposed,
including completion of the proposed transaction between Thermo Instrument and
the Company, it will reduce the number of Thermo Electron's majority-owned
subsidiaries from 23 to 12.
Thermo Instrument's and Thermo Electron's management examined several
factors, including the past performance of the Company and its future business
prospects, as well as the potential benefits to ThermoSpectra's business if it
were to become part of a larger business unit. Thermo Instrument and Thermo
Electron also considered the following factors: (i) the reduction in the amount
of public information available to competitors about ThermoSpectra's business
that would result from the termination of the Company's obligations under the
Commission reporting requirements; (ii) the elimination of additional burdens on
management associated with public reporting and other tasks resulting from the
Company's public company status, including, for example, the dedication of time
and resources of management and of the Board to stockholder and analyst
inquiries, and investor and public relations; (iii) the decrease in costs,
particularly those associated with being a public company (for example, as a
privately-held entity, the Company would no longer be required to file quarterly
and annual reports with the Commission or publish and distribute to its
stockholders annual reports and proxy statements), that Thermo Electron and
Thermo Instrument anticipate could result in savings of approximately $450,000
per year, which estimate includes the approximate cost of the associated legal
and accounting fees; and (iv) the greater flexibility that the Company's
management would have to focus on long-term business goals, as opposed to
quarterly earnings, as a private company.
Thermo Instrument and Thermo Electron also considered the relatively low
volume of trading in the Common Stock and that the Merger would result in
immediate availability of enhanced liquidity for the Minority Stockholders.
Management of both Thermo Instrument and Thermo Electron also considered that
Thermo Instrument's acquisition of the minority stockholder interest in
ThermoSpectra would advance the goal of Thermo Electron's proposed corporate
reorganization to reduce the number of majority-owned, public subsidiaries of
Thermo Electron. Management of Thermo Instrument and Thermo Electron also
considered recent trends in the price of the Common Stock, although
ThermoSpectra's current stock price was not a significant factor in the timing
of Thermo Instrument's or Thermo Electron's decision to propose the acquisition
of the minority stockholder interest in ThermoSpectra by Thermo Instrument. In
mid-August 1998, management of Thermo Instrument and Thermo Electron decided to
propose to their respective board of directors that Thermo Instrument make an
offer to acquire all of the shares of Common Stock that Thermo Instrument and
Thermo Electron did not already own for either cash or shares of Thermo
Instrument common stock.
On August 10 and 11, 1998, the board of directors of Thermo Electron held a
special meeting at which Thermo Electron's and Thermo Instrument's management
presented the proposal for Thermo Instrument to acquire all of the shares of
Common Stock that Thermo Instrument and Thermo Electron did not already own, as
a part of the proposed corporate reorganization of Thermo Electron and certain
of its subsidiaries. The Thermo Electron board of directors discussed several
factors presented by management regarding this proposal, including (i) the past
performance of the Company and its future business
18
<PAGE>
prospects, as well as the potential benefits to ThermoSpectra's business if it
were to become part of a larger business unit; (ii) the reduction in the amount
of public information available to competitors about ThermoSpectra's business
that would result from the termination of the Company's obligations under the
Commission reporting requirements; (iii) the elimination of additional burdens
on management associated with public reporting and other tasks resulting from
the Company's public company status, including, for example, the dedication of
time and resources of management and of the Board to stockholder and analyst
inquiries, and investor and public relations; (iv) the decrease in costs,
particularly those associated with being a public company (for example, as a
privately-held entity, the Company would no longer be required to file quarterly
and annual reports with the Commission or publish and distribute to its
stockholders annual reports and proxy statements), that Thermo Electron and
Thermo Instrument anticipate could result in savings of approximately $450,000
per year, which estimate includes the approximate cost of the associated legal
and accounting fees; and (v) the greater flexibility that the Company's
management would have to focus on long-term business goals as opposed to
quarterly earnings, as a private company.
The Thermo Electron board of directors also considered the relatively low
volume of trading in the Common Stock and that the Merger would result in
immediate availability of enhanced liquidity for the Minority Stockholders. The
Thermo Electron board of directors also acknowledged that as a result of the
Merger, the entire equity interest in ThermoSpectra would be beneficially owned
by Thermo Electron, directly and indirectly through Thermo Instrument. The
Minority Stockholders would no longer have any interest in, and would not be
stockholders of, ThermoSpectra, and therefore would not participate in
ThermoSpectra's future earnings and potential growth. Additionally, upon
consummation of the Merger, the Common Stock would no longer be traded on the
AMEX, price quotations with respect to sales of shares in the public market
would no longer be available and the registration of the Common Stock under the
Exchange Act would be terminated.
In addition, the Thermo Electron board of directors considered the
advantages and disadvantages of certain alternatives to acquiring the minority
stockholder interest in ThermoSpectra, including (i) selling its and Thermo
Instrument's equity interest in the Company and (ii) leaving ThermoSpectra as a
majority-owned, public subsidiary of Thermo Instrument. The first alternative,
that of selling its and Thermo Instrument's equity interest in the Company, was
briefly considered by Thermo Electron management, but it was not an alternative
that was pursued as reasonable, given that Thermo Electron did not want to sell
its equity interest, and did not want Thermo Instrument to sell its equity
interest, in the Company. The advantages to leaving ThermoSpectra as a
majority-owned, public subsidiary that Thermo Electron considered included
(i) the ability of Thermo Instrument to invest the cash that would be required
to buy the minority stockholder interest in ThermoSpectra in alternative uses
and (ii) maintaining the potential access ThermoSpectra has to capital in the
public markets as a public company. The disadvantages to leaving ThermoSpectra
as a majority-owned, public subsidiary that Thermo Electron considered included
(i) the costs associated with being a public company and (ii) the public
information available to competitors about ThermoSpectra's business as result of
its filing obligations with the Commission.
The Thermo Electron board of directors also discussed that, by acquiring the
minority stockholder interest in ThermoSpectra, it would advance the goal of
Thermo Electron's proposed corporate reorganization to reduce the number of
Thermo Electron's majority-owned, public subsidiaries. After consideration of
these various factors, Thermo Electron's board authorized a proposed corporate
reorganization, which included Thermo Instrument acquiring all of the shares of
Common Stock that Thermo Instrument and Thermo Electron did not already own for
either cash or Thermo Instrument common stock. On August 12, 1998, Thermo
Electron issued a press release announcing its proposed corporate
reorganization.
On September 24 and 25, 1998, the board of directors of Thermo Instrument
held a meeting at which the proposed plan to acquire the minority stockholder
interest in ThermoSpectra was discussed. Thermo Instrument's management reviewed
the considerations set forth above.
19
<PAGE>
On December 3, 1998, the board of directors of Thermo Electron held a
meeting at which the proposed plan to acquire the minority stockholder interest
in ThermoSpectra was discussed. Thermo Instrument's and Thermo Electron's
management reviewed the considerations set forth above. Thermo Electron's board
discussed the advantages and disadvantages of acquiring the minority stockholder
interest in ThermoSpectra. The advantages to acquiring the minority stockholder
interest that the Thermo Electron board considered included a review of the
factors considered at its August 10-11, 1998 meeting set forth above. The
disadvantages to acquiring the minority stockholder interest in ThermoSpectra
that Thermo Electron considered included (i) the inability of Thermo Instrument
to invest the cash that would be required to buy the minority stockholder
interest in ThermoSpectra in alternative uses and (ii) the elimination of
potential access by ThermoSpectra to capital in the public markets as a private
company. Following these discussions, Thermo Electron's board authorized a
modified corporate reorganization plan, which included Thermo Instrument taking
ThermoSpectra private by acquiring all of the shares of ThermoSpectra that
Thermo Instrument and Thermo Electron did not already own for cash. On
December 10, 1998, Thermo Electron issued a press release announcing its
modified proposed corporate reorganization.
On December 4, 1998, the board of directors of Thermo Instrument held a
meeting at which the proposed plan to acquire the minority stockholder interest
in ThermoSpectra was discussed. Thermo Instrument's management reviewed the
considerations set forth above.
On December 8, 1998, ThermoSpectra's Board held a meeting during which all
members were present in person or by telephone. The Board's first action was to
appoint Messrs. Joseph A. Baute and David J. Beaubien as directors of the
Company. The Board next determined that because Thermo Instrument was its
majority stockholder, it was desirable to appoint a Special Committee, to act on
behalf of, and in the interests of, the Minority Stockholders, for the purpose
of evaluating the merits of, and negotiating the terms of, any proposed
transaction with Thermo Instrument. The Board appointed Messrs. Baute and
Beaubien to serve as members of the Special Committee. The Board also authorized
the Special Committee to retain a financial advisor, a legal advisor and any
other advisors it deemed necessary to assist it in carrying out its
responsibilities. Additionally, the Board granted the Special Committee and its
advisors access to all of the officers and members of management of
ThermoSpectra and its subsidiaries, including its books, records, projections
and financial statements that were deemed necessary by the Special Committee and
its advisors for their review. The Board noted that Mr. Baute was also a
director of Metrika Systems Corporation, a majority-owned subsidiary of Thermo
Instrument, and that Mr. Beaubien was a director of ONIX Systems Inc., a
majority-owned subsidiary of Thermo Instrument. The Board determined that these
directorships did not prevent either member from fulfilling his duties as a
member of the Special Committee.
On December 21, 1998, the Company received an unsolicited offer to purchase
certain assets of one of its Test and Measurement businesses for approximately
$4 million and the assumption of certain liabilities. The Company subsequently
rejected the offer due to its proposed participation in the corporate
reorganization of Thermo Electron, the inadequacy of the proposed price and its
review of various strategic alternatives for this business.
In December 1998 and early January 1999, the Special Committee conducted
interviews with and considered three law firms to act as its legal advisor.
Following such investigation, on December 31, 1998 the Special Committee
retained Goodwin, Procter & Hoar LLP ("Goodwin Procter") of Boston to act as its
legal advisor. In making its decision, the Special Committee took into account
that Goodwin Procter (i) had neither currently nor in the past represented
Thermo Electron or any of its subsidiaries and (ii) was located in Boston, close
to the corporate offices of the Company, Thermo Instrument and Thermo Electron.
On January 19, 1999 the Special Committee convened a meeting with Goodwin
Procter, which meeting included discussions relating to the scope of the duties
of the members of the Special Committee,
20
<PAGE>
the scope of the Special Committee's authority and the requirement that the
members of the Special Committee be independent. The members of the Special
Committee affirmed their independence, their understanding of their obligations
and their intent to get the best result for the Minority Stockholders. The
members of the Special Committee also determined that they would not recommend a
transaction if they did not believe it was at a fair price and was not the best
transaction available for the Minority Stockholders. At this time, the Special
Committee noted that it had requested that Thermo Instrument not disclose the
terms of any proposed offer to the Special Committee until the Special Committee
had chosen its financial advisor and completed its independent due diligence
analysis. The Special Committee discussed its plans to visit various
ThermoSpectra facilities and to pursue discussions with management about the
business, financial condition and prospects of the Company. The Special
Committee then interviewed four investment banking firms that had previously
submitted proposals to serve as the Special Committee's financial advisor in
evaluating the terms of any proposed offer from Thermo Instrument.
On January 20, 1999, the Special Committee reconvened telephonically with
Goodwin Procter. After due deliberation, the Special Committee retained Tucker
Anthony Cleary Gull ("Tucker Anthony") as its financial advisor to assist in the
evaluation of any proposed offer from Thermo Instrument. Since it had been over
eight years since Tucker Anthony had provided any investment banking services to
Thermo Electron or its subsidiaries, the Special Committee concluded that there
was no current conflict of interest as a result of such prior work. Tucker
Anthony agreed to assist the Special Committee in, among other things:
- reviewing ThermoSpectra's business plan, growth strategies and historic
operating and financial performance;
- preparing an analysis of ThermoSpectra to determine valuation parameters
for ThermoSpectra;
- assisting in evaluating and negotiating the terms and conditions of any
proposed offer from Thermo Instrument; and
- providing a written opinion as to the fairness, from a financial point of
view, of the consideration to be received by the Minority Stockholders in
connection with any proposed offer from Thermo Instrument.
On January 29, 1999, the Special Committee met with representatives from
Goodwin Procter and Tucker Anthony at the Company's NESLAB Instruments, Inc.
("NESLAB") facility in Portsmouth, New Hampshire. The Special Committee, Goodwin
Procter and Tucker Anthony toured the facilities and were given a business
presentation by Mr. Barry Howe, President and Chief Executive Officer of
ThermoSpectra. Following the presentation and tour, the members of the Special
Committee held a meeting to discuss the presentation, the Company's financial
statements, their impressions of the NESLAB facility, the Company's investments,
the Company's business focus and the outlook of certain of its industry
segments, as well as ThermoSpectra's corporate history and its role in Thermo
Electron's overall business and structure. They further discussed the timing of
Thermo Instrument's proposed offer, the historic trends in ThermoSpectra's stock
price and stockholder expectations.
Following its selection in January, Tucker Anthony pursued its diligence
review and analysis, including preparation of a financial model that
incorporated financial projections provided by ThermoSpectra's management (the
"Projections"), review of the valuations of comparable public companies and the
financial terms of comparable merger transactions, and preparation of discounted
cash flow valuations. Tucker Anthony also made visits to the companies
comprising ThermoSpectra's Temperature Control business, as well as to the
larger companies and divisions within ThermoSpectra's Test and Measurement and
Imaging and Inspection businesses.
On February 25, 1999 and February 26, 1999, the boards of directors of
Thermo Electron and Thermo Instrument, respectively, held special meetings to
discuss, among other things, a proposed transaction with ThermoSpectra. Thermo
Electron's and Thermo Instrument's management discussed the advantages and
21
<PAGE>
disadvantages of acquiring the minority stockholder interest in ThermoSpectra,
as described above. Thermo Electron and Thermo Instrument also discussed (i) the
cyclicality of one of the Company's primary industries, the semiconductor
industry and (ii) the burden on ThermoSpectra of, at that time, its $67.3
million borrowings from, primarily, Thermo Electron in connection with various
past acquisitions and Thermo Instrument's and Thermo Electron's increased
flexibility to cancel or postpone payment of these borrowings if ThermoSpectra
were to become a private subsidiary of Thermo Instrument and Thermo Electron. In
addition, Thermo Electron and Thermo Instrument reviewed the net overall cost of
the transaction and explored alternative uses for the cash proposed to be used
for this transaction. After consideration of these various factors, the Thermo
Electron board authorized Thermo Instrument to make an offer to ThermoSpectra to
acquire, through a merger, all of the outstanding shares of ThermoSpectra Common
Stock that Thermo Instrument and Thermo Electron did not already own for cash,
and the Thermo Instrument board authorized its management to negotiate such a
transaction with ThermoSpectra.
On March 8, 1999, Goodwin Procter provided the members of the Special
Committee with a memorandum of certain principles governing their duties and
responsibilities as independent directors representing the Minority Stockholders
in evaluating and negotiating the terms of the offer.
On March 10, 1999, the members of the Special Committee met with Goodwin
Procter and Tucker Anthony. Tucker Anthony reviewed the Company's Projections,
which Projections forecast a decline in revenues in 1999 to approximately $188.1
million and growth in revenues thereafter to approximately $285.1 million in
2003, a compound annual growth rate from 1999 to 2003 of approximately 11.0%.
The Projections assume an improvement in the Company's operating margin from an
actual operating margin of 5.4% in 1998 to 10.6% in 1999, 14.0% in 2000, 15.2%
in 2001, 16.3% in 2002 and 17.4% in 2003. The Projections also assume
(i) market conditions remaining constant based on past trends, (ii) no
significant impact on currency exchange rates, (iii) no significant acquisitions
and (iv) the competitive market position of the Company remaining constant
vis-a-vis its competitors. For additional information and a summary of the
Projections, see "CERTAIN PROJECTED FINANCIAL DATA." Tucker Anthony noted that
the Projections assumed that the Company's operating margins in future periods
would be substantially greater than actual historical operating margins and
substantially greater than the actual operating margins realized by comparable
companies. Tucker Anthony modified this particular assumption by changing the
Company's projected operating margin to 11.0% in 1999 and thereafter, and then
presented the Special Committee with a revised version of the Projections (the
"Revised Projections"). Tucker Anthony observed that an 11.0% operating margin
was consistent with the operating margins actually realized by other public
companies that Tucker Anthony believed to be comparable to the Company. Tucker
Anthony noted that using the Projections and a discounted cash flow analysis,
which was only one component of its overall aggregate analysis, produced a range
of $19.37 to $22.37 per share. The same calculation using the Revised
Projections resulted in a per share valuation range of $12.16 to $14.06. Tucker
Anthony concluded, based upon its aggregate preliminary analysis and valuation
of the Company, that a price in the range of $13.50 to $15.00 per share of
Common Stock would be fair to the Minority Stockholders. The members of the
Special Committee discussed the appropriateness of the various analyses
presented with Tucker Anthony and Goodwin Procter.
On March 19, 1999, the members of the Special Committee met to review Tucker
Anthony's analysis and to prepare for Thermo Instrument's presentation and
offer. The Special Committee decided in advance that it would defer any response
to the offer until it had fully considered the offer, reviewed its underlying
assumptions and analyses, and assessed the merits of the offer. Later that same
day, representatives from Thermo Electron and Thermo Instrument presented Thermo
Instrument's offer of $13.00 per share for the shares of Common Stock owned by
the Minority Stockholders, together with their analyses supporting their offer.
Thermo Instrument's supporting analyses consisted of an analysis comparing the
Company with selected other publicly traded companies that compete in the same
markets as the Company and a discounted cash flow analysis. Thermo Instrument
analyzed certain financial multiples of comparable companies, which financial
multiples included the following: (i) a price to earnings ("P/E") multiple based
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on actual 1998 earnings per share ("EPS"); (ii) a P/E multiple based on
estimated 1999 EPS; (iii) a P/E multiple based on estimated 2000 EPS; (iv) a
price to tangible book value multiple; (v) enterprise value (market
capitalization plus debt minus cash) divided by revenues for the last twelve
months ended October 3, 1998 ("LTM"); (vi) enterprise value divided by LTM
earnings before interest, taxes, depreciation and amortization; and (vii)
enterprise value divided by LTM earnings before interest and taxes ("EBIT").
Thermo Instrument then reviewed the implied equity value for the Company based
on the median of these comparable multiples and the LTM financial data for the
Company. This analysis yielded an implied equity value per share for the Company
in the range of $2.94 to $15.75, with the median being $12.02. Thermo Instrument
also performed a discounted cash flow analysis of the Company. Thermo
Instrument's projections for the Company for 1999 through 2008 were used to
calculate the present value of the Company's projected cash flows over this
ten-year period, without taking into account any potential cost savings and
efficiencies that would be realized following the Merger. In addition, Thermo
Instrument calculated a "terminal" value (projected value for the Company in
2008) based on an assumed terminal cash flow growth rate. A range of equity
values for the Company was then determined by adding the Company's current cash
to, and subtracting the Company's current debt from, the present value of the
cash flows and the present value of this terminal value. In calculating the
present value of the cash flows and the terminal value, (i) various assumed
terminal cash flow growth rates were used to calculate a range of terminal
values and (ii) the projected cash flows and terminal values were each
discounted at annual rates of 10% to 20%, which represent estimates of the
Company's weighted average cost of capital. The per share range derived from
Thermo Instrument's discounted cash flow analysis of the Company was $9.92 to
$25.63, with the median being $14.50. Based on these analyses, Thermo Instrument
determined that $13.00 per share was a fair price for the shares of Common Stock
owned by the Minority Stockholders. The Special Committee instructed Tucker
Anthony to review Thermo Instrument's offer and underlying financial analysis.
On March 24, 1999, the members of the Special Committee held a telephonic
meeting with Goodwin Procter and Tucker Anthony. Tucker Anthony reviewed Thermo
Instrument's financial analysis of ThermoSpectra, noting that Thermo
Instrument's discounted cash flow analysis was based on a methodology using
terminal cash flow growth rates, which differed from the methodology Tucker
Anthony had used in its analysis of the Projections and the Revised Projections.
Tucker Anthony's discounted cash flow analysis was based on a methodology using
multiples of EBIT. In addition, Thermo Instrument's analysis covered a ten-year
period ending in 2008 and Tucker Anthony had used a five-year period ending in
2003. For further discussion of the discounted cash flow analyses performed by
Tucker Anthony and Thermo Instrument, see "SPECIAL FACTORS--Opinion of Financial
Advisor." Tucker Anthony advised the Special Committee that it believed two
assumptions upon which, in part, Thermo Instrument's analysis was based were
disputable. First, Thermo Instrument's analysis assumed a 2% terminal cash flow
growth rate for the business whereas Tucker Anthony proposed a 5% growth rate as
being more appropriate. Tucker Anthony felt a 2% terminal cash flow growth rate
was too low, as it essentially inferred no real growth, since inflation has
historically been approximately 2%. Furthermore, Tucker Anthony noted that the
2% terminal cash flow growth rate was significantly less than the actual growth
rate projected by Thermo Instrument for the preceding ten years. Second, Thermo
Instrument's analysis assumed a requirement for net operating assets, or working
capital, based upon the expected growth rate that was substantially in excess of
what Tucker Anthony believed such requirement to be. The Special Committee also
discussed the propriety of using the Revised Projections in Tucker Anthony's
various valuation analyses, since among other things, the Projections had been
prepared by ThermoSpectra management who had the greatest insight into
ThermoSpectra's operations and prospects. After discussing the relative merits
of Thermo Instrument's and Tucker Anthony's discounted cash flow valuation
methodologies, the Special Committee directed Tucker Anthony to prepare a
revised discounted cash flow analysis of the Company, using the Projections and
Thermo Instrument's discounted cash flow methodology as modified by Tucker
Anthony's proposed changes to the assumptions relating to the terminal cash flow
growth rate and working capital needs described above.
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<PAGE>
On March 29, 1999, after reviewing Tucker Anthony's report on its revisions
to Thermo Instrument's discounted cash flow analysis of the Projections, the
members of the Special Committee held two telephonic meetings. Goodwin Procter
was present at both meetings and Tucker Anthony was present at only the second
meeting. Tucker Anthony concluded that $19.65 per share of Common Stock, which
was the result of its revisions to Thermo Instrument's discounted cash flow
analysis of the Projections, would be the price that would have been produced by
Thermo Instrument's own analysis had they used the different assumptions
proposed by Tucker Anthony. The Special Committee determined that $19.65 should
be the Special Committee's counter-offer to Thermo Instrument's offer of $13.00
per share.
On March 31, 1999, the Company received an unsolicited offer to purchase its
Test and Measurement businesses for up to approximately $22 million and the
assumption of certain liabilities. The Company subsequently rejected the offer
due to its proposed participation in the corporate reorganization of Thermo
Electron, the inadequacy of the proposed price and its review of various
strategic alternatives for these businesses.
On April 7, 1999, ThermoSpectra's Board held a regularly scheduled meeting
during which all members were present in person or by telephone. The Board
attended to various unrelated matters and then heard a brief update from the
members of the Special Committee. The members of the Special Committee reported
to the Board that they had retained Goodwin Procter and Tucker Anthony as their
legal and financial advisors, respectively, and that they were currently in
negotiations with Thermo Instrument's management over the terms of the offer.
On April 9, 1999, the members of the Special Committee held a telephonic
consultation with Goodwin Procter and Tucker Anthony. The members of the Special
Committee deliberated over the various valuation methodologies and Thermo
Instrument's modified offer of a range of $13.00 to $15.00 per share that had
been communicated to the Special Committee on April 7, 1999 by Mr. Earl R.
Lewis, President and Chief Executive Officer of Thermo Instrument.
On April 23, 1999, the members of the Special Committee met with Mr. Lewis.
At this meeting, Mr. Lewis raised the per share price of the offer to $15.50.
The Special Committee responded with a counter-offer of $17.00 per share.
On April 26, 1999, the members of the Special Committee had a telephonic
meeting with Mr. Lewis and Dr. George N. Hatsopoulos, Chairman and then Chief
Executive Officer of Thermo Electron, regarding the $15.50 per share price
offered by Thermo Instrument. The Special Committee responded that $15.50 was an
unacceptably low price and that the Special Committee would consider a per share
price of $17.00 to be fair.
On April 27, 1999, the members of the Special Committee held a telephonic
meeting with Goodwin Procter and Tucker Anthony. After a discussion of
applicable legal requirements, the Special Committee's responsibilities and the
applicability of the various pricing models, the members of the Special
Committee determined that it would continue its efforts to obtain a price higher
than $15.50 per share. The Special Committee requested that Tucker Anthony
communicate its views with respect to the discounted cash flow methodology used
by Thermo Instrument to the management of Thermo Instrument. After several
negotiations with Thermo Instrument's management, it was agreed that the period
of analysis should be modified to cover Tucker Anthony's proposed five-year
period rather than Thermo Instrument's ten-year period. Tucker Anthony preferred
using a five-year period since Tucker Anthony felt the accuracy of a projection
beyond that length of time becomes questionable and a five-year period is
sufficient to capture both the internal dynamics of the business as well as the
macro-economic impact of an economic cycle. Additionally, it was agreed that
Tucker Anthony's proposed modifications to the assumptions relating to the
terminal cash flow growth rate of the business and the future requirement for
working capital, as described above, were appropriate. An analysis of the
Projections using these modifications to Thermo Instrument's discounted cash
flow methodology resulted in a per share present value for the Company of
$16.41.
24
<PAGE>
On April 29, 1999, in a telephonic meeting of the members of the Special
Committee with Mr. Lewis, a price of $16.00 per share was offered and agreed
upon as fair to the Minority Stockholders.
In May, counsel for Thermo Instrument and Goodwin Procter prepared,
negotiated and agreed upon the terms of the Merger Agreement.
On May 18, 1999, Thermo Instrument provided the Special Committee with
written confirmation of its proposed offer to purchase the shares of Common
Stock of the Minority Stockholders for $16.00 per share in cash, without
interest.
On May 20, 1999, Tucker Anthony met with the members of the Special
Committee to give its final report on the terms of the proposed Merger and
render its oral opinion to the Special Committee that the proposal by Thermo
Instrument of $16.00 per share in cash was fair, from a financial point of view,
to the Minority Stockholders. Tucker Anthony reviewed the various factors it
considered in rendering its opinion, which are described below under "--Opinion
of Financial Advisor." Later that same morning, the full Board of ThermoSpectra
then met at the offices of Thermo Electron in Waltham, Massachusetts to hear the
report of Tucker Anthony and to review the terms of the Merger Agreement. Of the
Company's seven member Board, five directors were present at the meeting in
person, one director was present at the meeting by means of video teleconference
and one director was present at the meeting by means of conference telephone.
Prior to this meeting, the members of the Special Committee periodically updated
ThermoSpectra's Board members, both formally and informally, on the progress of
the negotiations with Thermo Instrument. Additionally, approximately one week
prior to the meeting, the Board members received a copy of the draft Merger
Agreement and certain other information to consider before convening at the
May 20, 1999 meeting. After approximately two hours of discussions, the members
of the Special Committee recommended to the full Board that it accept Thermo
Instrument's offer and approve the Merger Agreement in the form presented at the
meeting. The Board unanimously approved the Merger Agreement, declared its
advisability and recommended that the stockholders vote in favor of the proposed
Merger Agreement.
Also on May 20, 1999, the Merger Agreement was presented to the board of
directors of Thermo Instrument at a special meeting of the board. Thermo
Instrument's board of directors unanimously approved the Merger Agreement.
On May 21, 1999, the Merger Agreement was presented to the board of
directors of Thermo Electron at a special meeting of the board. Thermo
Electron's board of directors unanimously approved the Merger Agreement. The
Merger Agreement was then duly executed by the parties. Tucker Anthony rendered
its written opinion to the Special Committee on May 21, 1999, to the effect
that, as of that date, the $16.00 per share consideration to be received
pursuant to the proposed Merger was fair, from a financial point of view, to the
Minority Stockholders. On the same day, ThermoSpectra issued a press release
announcing that, based on the recommendation of the Special Committee, its Board
had approved the Merger Agreement with Thermo Instrument.
THE SPECIAL COMMITTEE'S AND THE BOARD'S RECOMMENDATION
The Special Committee and the ThermoSpectra Board believe that the terms of
the Merger are fair to, and in the best interests of, the Minority Stockholders.
In reaching this conclusion, the Special Committee has determined that the
Merger is both substantively and procedurally fair, and is therefore entirely
fair, to the Minority Stockholders. The Board has adopted the analysis of the
Special Committee with regard to both the substantive and procedural fairness of
the Merger. Accordingly, the ThermoSpectra Board has unanimously approved the
Merger Agreement and unanimously recommends its approval by the stockholders.
25
<PAGE>
In reaching their decisions to approve the Merger Agreement, the Special
Committee and the ThermoSpectra Board considered the following factors, each of
which the Special Committee and the Board deemed favorable:
- THE PREMIUM REFLECTED IN THE CASH MERGER CONSIDERATION OF $16.00 PER
SHARE. Thermo Instrument's willingness to pay $16.00 per share, considered
in light of the course of negotiations with Thermo Instrument and the
historical market price of the Common Stock, was the most important factor
considered by the Special Committee and the Board in making their
respective decisions to approve the Merger Agreement.
- COURSE OF NEGOTIATIONS. The Special Committee and the Board
considered the history of negotiations with respect to the Merger
Agreement, which led to an increase in Thermo Instrument's initial
proposal of $13.00 per share on March 19, 1999 to a range of $13.00
to $15.00 per share offered on April 7, 1999 to $15.50 offered on
April 23, 1999 and finally to $16.00 offered on April 29, 1999.
- THE RELATIONSHIP OF THE CASH MERGER CONSIDERATION OF $16.00 PER
SHARE TO THE HISTORICAL MARKET PRICES FOR THE COMMON STOCK. The
Special Committee and the Board considered the declining per share
price of the Common Stock and the possibility that the price would
remain depressed. The Special Committee and the Board noted that it
had been approximately three years since the Common Stock had
consistently traded at or above $16.00 and that the Common Stock
had ranged from a high of $15.125 in the first quarter of 1997 to a
low of $8.25 in the fourth quarter of 1998. The Special Committee
and the Board also noted that the $16.00 per share price exceeded
the prices paid by Thermo Instrument and Thermo Electron since the
beginning of 1997 for shares of Common Stock (see Appendix E for
more detailed information relating to purchases of Common Stock by
Thermo Instrument and Thermo Electron since the commencement of the
Company's second full fiscal year preceding the date of this Proxy
Statement). The Special Committee and the Board concluded that the
$16.00 per share price proposed by Thermo Instrument, which
represented premiums of (i) approximately 61%, 44% and 39% over the
per share price on dates four weeks, one week and one day,
respectively, prior to announcement of the offer on May 21, 1999
and (ii) approximately 71% over the per share price on the day
prior to Thermo Electron's first public announcement of the
proposal to take ThermoSpectra private on August 12, 1998, would
enable the Minority Stockholders to obtain a higher price for their
stock than would otherwise be available in the market at that time.
The purchase by Thermo Instrument would also eliminate the exposure
of the Minority Stockholders to any future or continued declines in
the price of the Common Stock.
- INFORMATION CONCERNING THE FINANCIAL PERFORMANCE, CONDITION, BUSINESS
OPERATIONS AND PROSPECTS OF THERMOSPECTRA. The Special Committee and the
Board considered the historical, current and potential future performance
of ThermoSpectra and determined that the substantial premium reflected in
the price per share offered by Thermo Instrument was attractive in light
of the current performance, declining sales and profitability, and the
uncertainty of the Company's growth prospects. In addition, the Special
Committee and the Board determined that the Merger would shift the risk of
the future financial performance of ThermoSpectra from the Minority
Stockholders, who do not have the power to control ThermoSpectra, entirely
to Thermo Instrument, which does have the power to control ThermoSpectra
and has the resources to manage and bear that risk over the long term.
- CURRENT MARKET TRENDS IN THE INDUSTRIES IN WHICH THERMOSPECTRA COMPETES,
PRIMARILY THE SEMICONDUCTOR INDUSTRY. The Special Committee and the Board
considered the fact that a significant portion of the Company's total
revenues, primarily in its Imaging and Inspection and Temperature Control
26
<PAGE>
businesses, is attributable to the sale of products and related services
to customers in the semiconductor industry. The semiconductor industry has
historically been cyclical and is characterized by sudden and sharp
changes in supply and demand. Demand for the Company's products and
services within the semiconductor industry is dependent upon, among other
things, the level of capital spending by semiconductor companies. The
semiconductor industry has been experiencing weakness in demand for its
products as a result of the economic crisis in Asia, excess manufacturing
capacity and slowdowns in sales of high-end personal computers. Many
semiconductor manufacturers delayed construction or expansion of their
production facilities in response to the foregoing conditions. The
slowdown in semiconductor activity began to affect demand for the
Company's products in the second quarter of 1998. The semiconductor
industry has shown some increased activity, but not to the levels
experienced prior to this most recent slowdown.
- TERMS OF THE MERGER AGREEMENT. The Special Committee and the Board
considered the terms of the Merger Agreement, including (i) the amount and
form of the consideration, (ii) the limited number of conditions to the
obligations of Thermo Instrument, including the lack of a financing
condition, (iii) the right of the ThermoSpectra Board, upon recommendation
of the Special Committee, to terminate the Merger Agreement if the Board
determines that the Board's fiduciary duties to the ThermoSpectra
stockholders require it to do so, and (iv) the absence of a termination
fee in the event ThermoSpectra terminates the Merger Agreement. The
Special Committee and the Board believed that the foregoing made the
consummation of the transaction more likely than it would if more
significant conditions were placed on the completion of the transaction or
if Thermo Instrument did not have the independent financial resources to
complete the transaction. Further, the Special Committee and the Board
believed that the ability of the Board to terminate the Merger Agreement
without payment of a termination fee in the event its fiduciary duties to
the ThermoSpectra stockholders required it to do so provided the Board the
freedom to protect the interests of the Minority Stockholders.
- THE LIQUIDITY THAT WOULD BE REALIZED BY THE MINORITY STOCKHOLDERS FROM THE
ALL-CASH OFFER. The Special Committee and the Board believed that the
liquidity to be realized by the Minority Stockholders would be beneficial
to such stockholders since Thermo Instrument's and Thermo Electron's
combined significant ownership of the Common Stock (i) resulted in a
relatively small public float that necessarily limited the amount of
trading in the Common Stock and (ii) decreased the likelihood that a
proposal to acquire the Common Stock would be made by an independent
entity without the consent of Thermo Instrument and furthermore, Thermo
Instrument and Thermo Electron had stated their current intention to
retain their majority holdings in the Company, which foreclosed the
opportunity to consider an alternative transaction with a third party
purchaser of the Company or otherwise provide liquidity to the Minority
Stockholders.
- THE OPINION OF TUCKER ANTHONY THAT THE CONSIDERATION OF $16.00 PER SHARE
IN CASH IS FAIR, FROM A FINANCIAL POINT OF VIEW, TO THE MINORITY
STOCKHOLDERS. The Special Committee and the Board reviewed the independent
financial analyses performed by Tucker Anthony, including analyses of
relative value and discounted cash flows that assume ThermoSpectra will
continue as a going concern, and found them to be reasonable. They
believed that Tucker Anthony's conclusion that the price offered by Thermo
Instrument was fair, from a financial point of view, to the Minority
Stockholders was a reasonable conclusion based on the analyses performed.
See "--Opinion of Financial Advisor."
The Special Committee and the Board also considered the following factors,
all of which they considered as negative factors in their deliberations
concerning their respective decisions to approve the Merger Agreement:
- FOLLOWING THE MERGER, THE MINORITY STOCKHOLDERS WILL CEASE TO PARTICIPATE
IN THE FUTURE EARNINGS OR GROWTH, IF ANY, OF THERMOSPECTRA OR BENEFIT FROM
INCREASES, IF ANY, IN THE VALUE OF THERMOSPECTRA. The Special Committee
and the Board evaluated this in light of the recent financial performance
of
27
<PAGE>
ThermoSpectra, the current industry outlook and the risks and
uncertainties associated with ThermoSpectra's future prospects, as
described above.
- THE POSITIVE ASPECTS OF THE COMPANY, INCLUDING ITS HIGH QUALITY PRODUCTS,
HIGHLY REGARDED MANAGEMENT TEAM, LEADING MARKET POSITION IN CERTAIN
PRODUCT AREAS, DIVERSIFIED CUSTOMER BASE AND STRONG EXISTING PRODUCT
PORTFOLIO. The Special Committee and the Board believed that these aspects
were potential contributors to the future success of ThermoSpectra and
weighed in favor of continuing ThermoSpectra as a public company. However,
these positive aspects were offset by the many other considerations listed
above.
- POTENTIAL OR ACTUAL CONFLICTS OF INTEREST OF OFFICERS AND DIRECTORS OF
THERMOSPECTRA IN CONNECTION WITH THE MERGER. See "--Conflicts of
Interest."
The Special Committee and the Board did not consider the net book value of
the Company as an adequate reflection of the Company's value. The Company's net
book value at April 3, 1999, for example, was approximately $129.9 million,
which would have yielded a per share valuation for the Company of $8.47, which
was lower than the $10.00 closing price of the Common Stock on April 1, 1999 and
substantially lower than Thermo Instrument's initial offer of $13.00 per share.
In addition, Tucker Anthony advised the Special Committee that an analysis of
the Company based on multiples of net book value would not be a reliable
indicator of the value of the Company, but rather Tucker Anthony recommended
using multiples of earnings before interest and taxes ("EBIT"), earnings before
interest, taxes, depreciation and amortization ("EBITDA"), and revenues (see "--
Opinion of Financial Advisor"). Tucker Anthony recommended using these multiples
over multiples of net book value for several reasons, including (i) in the high
growth industries in which the Company's businesses compete, companies are not
primarily valued on the basis of their net book value, which is a valuation
methodology typically used in the banking, utility and financial services
industries, and (ii) Tucker Anthony analyzed the Company's three business
segments individually (see "--Opinion of Financial Advisor"), and though a net
book value for each component part of ThermoSpectra's business could be
assigned, multiples of EBIT, EBITDA and revenues for these component parts were
considered more reliable indicators than multiples of net book value, which are
generally more reliable indicators for businesses that are analyzed in the
aggregate.
The Special Committee and the Board also did not consider evaluating the
Company on a going concern basis, as to do so would require "shopping" the
Company to prospective purchasers. "Shopping" the Company would not only entail
substantial time delays and allocation of management's time and energy, but
would also substantially disrupt and be discouraging to the Company's employees.
Furthermore, Thermo Instrument and Thermo Electron indicated to the Special
Committee and the Board that they had no desire or intention to sell the
Company, but rather wanted to continue to operate the Company substantially as
it was being operated. The Special Committee and the Board also did not consider
the Cash Merger Consideration as compared to any implied liquidation value
because it was not contemplated that the Company be liquidated, whether or not
the Merger would be completed. In addition, as previously noted, Thermo
Instrument and Thermo Electron indicated to the Special Committee and the Board
that they intended to continue to operate the Company's businesses substantially
as they were being operated.
In determining that the Merger is fair to the Minority Stockholders, the
Special Committee and the Board considered the above factors as a whole and did
not assign specific or relative weights to them other than the Cash Merger
Consideration, which was considered the most important factor. The factors
described above constitute all of the material factors considered by the Special
Committee and the Board. In the view of the Special Committee and the Board,
each of the positive factors listed above, in the aggregate, reinforced their
belief that the transaction was in the best interests of the Minority
Stockholders and outweighed the negative factors listed above.
The Special Committee's and the Board's belief as to the procedural fairness
of the Merger was based on their recognition that (i) the Special Committee
consisted of two independent directors appointed by a
28
<PAGE>
majority of the Board of Directors to represent solely the interests of the
Minority Stockholders and to provide independent consideration of the
transaction; (ii) the Special Committee retained and was advised by independent
legal counsel; (iii) the Special Committee retained Tucker Anthony as its
independent financial advisor to assist in evaluating the proposed transaction
and received advice from Tucker Anthony; and (iv) the fact that the Cash Merger
Consideration and the other terms and conditions of the Merger Agreement
resulted from active arms-length bargaining between representatives of the
Special Committee and representatives of management of Thermo Instrument and
Thermo Electron. In forming the Special Committee, the Board noted that
Mr. Baute was also a director of Metrika Systems Corporation, a majority-owned
subsidiary of Thermo Instrument, and that Mr. Beaubien was a director of ONIX
Systems Inc., a majority-owned subsidiary of Thermo Instrument. The Board
determined that these directorships did not prevent either member from
fulfilling his duties as a member of the Special Committee. No other
unaffiliated representative was retained to act solely on behalf of the Minority
Stockholders for the purposes of negotiating the terms of the Merger or the
Merger Agreement. The Special Committee and the Board, in their respective
assessments of the procedural fairness of the transaction, did not insist on
approval of the transaction by at least a majority of the Minority Stockholders.
The Special Committee and the Board felt the procedural safeguards relating to
the formation of the Special Committee, its retention of independent financial
and legal advisors, and the arms-length bargaining with Thermo Instrument and
Thermo Electron, as described above, sufficiently protected the interests of the
Minority Stockholders. In addition, the Minority Stockholders can demand
statutory appraisal of the fair value of their shares of Common Stock if they
wish to dissent from the transaction. See "RIGHTS OF DISSENTING STOCKHOLDERS."
Stockholders should also note that though the Special Committee and the Board
did not consider any alternative transactions, the Special Committee and the
Board could have rejected Thermo Instrument's offer. However, both the Special
Committee and the Board determined that it was in the best interests of the
Minority Stockholders and the Company, respectively, to accept Thermo
Instrument's proposed offer at the price of $16.00 per share and that the lack
of considered alternatives did not jeopardize the procedural fairness of the
proposed transaction.
THE SPECIAL COMMITTEE AND THE THERMOSPECTRA BOARD, BY A UNANIMOUS VOTE, HAVE
APPROVED THE MERGER AGREEMENT, BELIEVE THAT THE TERMS OF THE MERGER ARE FAIR TO
THE MINORITY STOCKHOLDERS AND THE BOARD UNANIMOUSLY RECOMMENDS THAT THE
STOCKHOLDERS VOTE TO APPROVE THE MERGER AGREEMENT.
In considering the recommendation of the Special Committee and the Board
with respect to the Merger Agreement, stockholders should be aware that certain
members of the Special Committee and the Board have certain interests in the
Merger that are different from, or in addition to, the interests of stockholders
generally and that represent actual or potential conflicts of interest. The
Special Committee and the Board were aware of these interests and considered
them, among other matters, in approving the Merger Agreement. See "--Conflicts
of Interest."
In order to aid the evaluation of the Company by the Special Committee and
Tucker Anthony and Tucker Anthony's assessment of the fairness, from a financial
point of view, of the consideration of $16.00 per share in cash payable to the
Minority Stockholders pursuant to the Merger Agreement, the Company furnished
the Special Committee and Tucker Anthony with certain projected financial data
prepared by the Company's management. See "CERTAIN PROJECTED FINANCIAL DATA."
OPINION OF FINANCIAL ADVISOR
The Special Committee retained Tucker Anthony to act as its financial
advisor and to render an opinion to the Special Committee as to the fairness,
from a financial point of view, of the consideration to be received by the
Minority Stockholders of the Company pursuant to the proposed transaction with
Thermo Instrument.
The Special Committee selected Tucker Anthony for a number of reasons,
including its knowledge of the instrumentation segment of the technology
industry and its experience and reputation in the area of
29
<PAGE>
valuation and financial advisory work generally, and in relation to transactions
of the size and nature of the proposed transaction specifically. Tucker Anthony
is a nationally recognized investment banking firm and is regularly engaged in
the valuation of businesses and their securities in connection with mergers and
acquisitions, leveraged buyouts, negotiated underwritings, private placements
and valuations for corporate and other purposes. From time to time, Tucker
Anthony and its affiliates may hold long or short positions in the Common Stock,
the common stock of Thermo Electron or the common stock of Thermo Instrument.
Tucker Anthony rendered its written opinion to the Special Committee on
May 21, 1999, to the effect that, as of that date, the consideration to be
received pursuant to the proposed Merger was fair, from a financial point of
view, to the Minority Stockholders. Tucker Anthony has not been requested to,
and will not, update its opinion unless the Special Committee requests such an
update. The Special Committee has advised Tucker Anthony that it will not seek
an update to the fairness opinion unless:
- there is a material modification to the terms of the proposed
consideration or other material amendment to the Merger Agreement that the
Special Committee determines would be reasonably likely to impact the
overall fairness of the Merger to the Minority Stockholders; or
- a material event occurs that the Special Committee determines would be
reasonably likely to affect Tucker Anthony's opinion if the opinion was
reissued taking into account such event.
The Special Committee has informed Tucker Anthony that, as of the date of
this Proxy Statement, there has been no change in the terms of the proposed
consideration and there has been no material event that the Special Committee
believes could affect Tucker Anthony opinion since Tucker Anthony rendered such
opinion.
THE FULL TEXT OF THE WRITTEN OPINION OF TUCKER ANTHONY DATED MAY 21, 1999,
WHICH SETS FORTH THE ASSUMPTIONS MADE, GENERAL PROCEDURES FOLLOWED, MATTERS
CONSIDERED AND LIMITATIONS ON THE SCOPE OF REVIEW UNDERTAKEN BY TUCKER ANTHONY
IN RENDERING ITS OPINION, IS ATTACHED AS APPENDIX B TO THIS PROXY STATEMENT AND
IS INCORPORATED HEREIN BY REFERENCE. THE TUCKER ANTHONY OPINION IS DIRECTED TO
THE SPECIAL COMMITTEE AND PERTAINS ONLY TO THE FAIRNESS, FROM A FINANCIAL POINT
OF VIEW, OF THE CONSIDERATION TO BE RECEIVED BY THE MINORITY STOCKHOLDERS
PURSUANT TO THE PROPOSED MERGER, AND DOES NOT CONSTITUTE A RECOMMENDATION TO ANY
THERMOSPECTRA STOCKHOLDER AS TO HOW SUCH STOCKHOLDER SHOULD VOTE WITH RESPECT TO
THE APPROVAL OF THE MERGER AGREEMENT. THE SUMMARY OF TUCKER ANTHONY'S OPINION
SET FORTH BELOW IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE FULL TEXT OF
THE WRITTEN OPINION ATTACHED HERETO AS APPENDIX B. HOLDERS OF COMMON STOCK ARE
URGED TO READ THE ENTIRE OPINION CAREFULLY.
In conducting its investigation and analysis and in arriving at its opinion,
Tucker Anthony reviewed the information and took into account the financial and
economic factors as it deemed relevant and material under the circumstances. The
material actions Tucker Anthony undertook in its analysis were as follows:
- reviewed internal financial information concerning the business and
operations of ThermoSpectra that was furnished to Tucker Anthony by the
Company's management for purposes of its analysis, as well as publicly
available information, including but not limited to ThermoSpectra's recent
filings with the Commission;
- reviewed the Merger Agreement in the form presented to the Special
Committee;
- compared the historical market prices and trading activity of the Common
Stock with those of other publicly traded companies that Tucker Anthony
deemed relevant;
- compared the financial position and operating results of ThermoSpectra
with those of other publicly traded companies that Tucker Anthony deemed
relevant;
- compared the proposed financial terms of the Merger with the financial
terms of other merger and acquisition transactions that Tucker Anthony
deemed relevant; and
30
<PAGE>
- held discussions with members of ThermoSpectra's senior management
concerning the Company's historical and current financial condition and
operating results, as well as the future prospects of the Company.
Tucker Anthony also reviewed relevant industry market research studies,
company research reports and key economic and market indicators, including
interest rates, inflation rates, consumer spending levels, manufacturing
productivity levels, unemployment rates and general stock market performance.
Other than as set forth above, Tucker Anthony did not review any additional
information in preparing its opinion that, independently, was material to its
analysis. As a part of its engagement, Tucker Anthony was not requested to, and
did not, solicit third party indications of interest in acquiring ThermoSpectra.
The Special Committee did not place any limitation upon Tucker Anthony with
respect to the procedures followed or factors considered by Tucker Anthony in
rendering its opinion.
In arriving at its opinion, Tucker Anthony assumed and relied upon the
accuracy and completeness of all of the financial and other information that was
publicly available or provided to Tucker Anthony by, or on behalf of, the
Company, and did not independently verify that information. Tucker Anthony
assumed, with the Special Committee's consent, that:
- all material assets and liabilities (contingent or otherwise, known or
unknown) of the Company are as set forth in its financial statements;
- obtaining all regulatory and other approvals and third party consents
required for consummation of the proposed Merger would not have a material
effect on the anticipated benefits of the transaction; and
- the Merger would be consummated in accordance with the terms set forth in
the Merger Agreement, without any amendment thereto and without waiver by
the Company or Thermo Instrument of any of the conditions to their
respective obligations thereunder.
Tucker Anthony assumed that the Projections examined by it were reasonably
prepared based upon the best available estimates and good faith judgments of the
Company's senior management as to the future performance of ThermoSpectra. In
conducting its review, Tucker Anthony did not obtain an independent evaluation
or appraisal of any of the assets or liabilities (contingent or otherwise) of
ThermoSpectra. Tucker Anthony's opinion did not predict or take into account any
possible economic, monetary or other changes which may occur, or information
which may become available, after the date of its written opinion.
SUMMARY OF ANALYSES
The following is a summary of the material financial analyses performed by
Tucker Anthony in connection with rendering its opinion.
ANALYSIS OF THERMOSPECTRA'S VALUATION PREMIUM. Tucker Anthony compared the
premium to be received by the Minority Stockholders of ThermoSpectra as
represented by the proposed consideration of $16.00 per share in cash to the
closing price of the Common Stock one week prior to the May 21, 1999 date of its
written opinion.
- Tucker Anthony calculated that the proposed consideration of $16.00 per
share represented a premium of 43.8% over the closing price of $11.125 for
the Common Stock on May 14, 1999, one week prior to the date of its
written opinion.
Tucker Anthony reviewed comparable transactions in the following categories:
(i) 103 acquisitions between January 1994 and March 1999 of a minority interest
(ranging from 10.0% to 47.0%) in a public company that remained a public company
following the transaction; and (ii) 23 acquisitions between February 1994 and
January 1999 of a remaining minority interest (ranging from 10.0% to 48.1%) in a
public company that went private as a result of the transaction. Tucker Anthony
noted that the ThermoSpectra transaction represents a remaining minority
interest transaction. Tucker Anthony further
31
<PAGE>
noted that an acquisition of a minority interest or a remaining minority
interest differs from an acquisition of a 100% interest. In a 100% acquisition,
the acquiring company purchases, and the financial terms of the transaction
reflect, a control premium. The acquisition of a minority interest in a public
company does not, generally, involve a control premium. While the acquisition of
a remaining minority interest does not, generally, involve a control premium, it
nevertheless is impacted by the fact that stockholders do not have the
alternative to retain their publicly traded stock in the subject company.
Accordingly, premiums paid in remaining interest transactions generally are
greater than premiums paid in minority interest transactions. Tucker Anthony's
analysis produced the following adjusted mean premiums (the adjusted mean
excludes the high and low values in calculating the average) over the
one-week-prior stock price in the comparable transactions as compared to the
43.8% premium in the proposed transaction:
- the adjusted mean premium over the stock price one week prior to the
announcement of the 103 acquisitions of a minority interest in a public
company was 14.3%, with a range of 1.5% to 50.7%; and
- the adjusted mean premium over the stock price one week prior to the
announcement of the 23 remaining minority interest transactions was 18.8%,
with a range of 3.8% to 50.6%. Tucker Anthony again noted that these
transactions are most comparable to the ThermoSpectra transaction.
ANALYSIS OF SELECTED PUBLICLY TRADED COMPANIES COMPARABLE TO
THERMOSPECTRA. Tucker Anthony noted that the profile of the Company's business
in aggregate is unique. As a result, Tucker Anthony reviewed publicly available
financial information as of the most recently reported period and stock market
information as of May 14, 1999 for publicly traded companies that Tucker Anthony
deemed relevant to each of the Company's three business segments:
(i) Temperature Control segment; (ii) Test and Measurement segment; and
(iii) Imaging and Inspection segment. For each comparable company, Tucker
Anthony calculated multiples of enterprise value to the latest twelve months
("LTM") earnings before interest and taxes ("EBIT"), LTM earnings before
interest, taxes, depreciation and amortization ("EBITDA") and LTM Revenues.
Tucker Anthony then calculated the implied gross enterprise value for each
business segment based on the adjusted mean of these comparable group multiples
and the corresponding business segment financial data for the LTM ending
April 3, 1999, which financial data is based on actual results for the nine
months ending January 2, 1999 and estimated results for the three months ending
April 3, 1999. Tucker Anthony compared the financial characteristics of the
Company's Temperature Control segment to the following companies:
<TABLE>
<C> <S> <C> <C>
1. Cerprobe Corporation 5. Applied Materials, Inc.
2. GenRad, Inc. 6. Credence Systems Corporation
3. IFR Systems, Inc. 7. KLA--Tencor Corporation
4. Keithley Instruments, Inc.
</TABLE>
The following table sets forth the calculation of implied gross enterprise
values for the Temperature Control segment:
TEMPERATURE CONTROL SEGMENT
<TABLE>
<CAPTION>
SEGMENT COMPARABLE IMPLIED GROSS
FINANCIAL DATA GROUP MULTIPLES ENTERPRISE VALUES
-------------- --------------- -----------------
(IN THOUSANDS) (IN THOUSANDS)
<S> <C> <C> <C>
LTM EBIT $ 5,912 17.7x $104,434
LTM EBITDA $ 7,350 13.6x $100,012
LTM Revenues $54,768 0.9x $ 47,310
</TABLE>
32
<PAGE>
Tucker Anthony compared the financial characteristics of the Company's
Imaging and Inspection segment to the following companies:
<TABLE>
<C> <S> <C> <C>
1. American Science and Engineering, Moore Products Company
Inc. 6.
2. Barringer Technologies, Inc. 7. Robotic Vision Systems, Inc.
3. Bio-Rad Laboratories, Inc. 8. Oxford Instruments plc
4. Cognex, Inc. 9. PPT Vision, Inc.
5. Invision Technologies, Inc. 10. Veeco Instruments Inc.
</TABLE>
The following table sets forth the calculation of implied gross enterprise
values for the Imaging and Inspection segment:
IMAGING AND INSPECTION SEGMENT
<TABLE>
<CAPTION>
SEGMENT COMPARABLE IMPLIED GROSS
FINANCIAL DATA GROUP MULTIPLES ENTERPRISE VALUES
-------------- --------------- -----------------
(IN THOUSANDS) (IN THOUSANDS)
<S> <C> <C> <C>
LTM EBIT $ 4,295 10.8x $46,582
LTM EBITDA $ 5,946 9.4x $55,603
LTM Revenues $86,026 0.9x $74,205
</TABLE>
Tucker Anthony compared the financial characteristics of the Company's Test
and Measurement segment to the following companies:
<TABLE>
<C> <S> <C> <C>
1. Astro-Med, Inc. 7. Newport Corporation
2. Cyber Optics Corp. 8. Tektronix Inc.
3. Faro Technologies, Inc. 9. TSI Incorporated
4. Keithley Instruments, Inc. 10. Yokogawa Electronic Corporation
5. K-Tron International, Inc. 11. Zygo Corp.
6. Nanometrics Incorporated
</TABLE>
The following table sets forth the calculation of implied gross enterprise
values for the Test and Measurement segment:
TEST AND MEASUREMENT SEGMENT
<TABLE>
<CAPTION>
SEGMENT COMPARABLE IMPLIED GROSS
FINANCIAL DATA GROUP MULTIPLES ENTERPRISE VALUES
-------------- --------------- -----------------
(IN THOUSANDS) (IN THOUSANDS)
<S> <C> <C> <C>
LTM EBIT $ 1,984 9.2x $18,212
LTM EBITDA $ 2,812 7.6x $21,434
LTM Revenues $41,053 0.9x $37,328
</TABLE>
Tucker Anthony then calculated the aggregate implied gross enterprise value
of the Company as follows:
<TABLE>
<CAPTION>
IMPLIED GROSS ENTERPRISE VALUE BASED ON MULTIPLES OF:
-------------------------------------------------------
THERMOSPECTRA SEGMENT LTM EBIT LTM EBITDA LTM REVENUES
- --------------------- ---------- -------------- -------------
(IN THOUSANDS)
<S> <C> <C> <C>
Temperature Control $104,434 $100,012 $ 47,310
Imaging and Inspection 46,582 55,603 74,205
Test and Measurement 18,212 21,434 37,328
-------- -------- --------
Aggregate $169,228 $177,049 $158,843
======== ======== ========
</TABLE>
Tucker Anthony then calculated the implied equity value per share of the
Company based on the above aggregate implied gross enterprise values by adding
the cash balance ($18,094,000) and subtracting the amount of outstanding debt
($57,326,000) of the Company, each as of April 3, 1999. The resulting
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amounts were then divided by the number of outstanding shares of Common Stock as
of April 30, 1999. These calculations produced per share values equal to $8.48,
$8.99 and $7.80, based upon multiples of LTM EBIT, LTM EBITDA and LTM Revenues,
respectively. Tucker Anthony compared these amounts to the Company's
one-week-prior stock price of $11.125 and the proposed consideration of $16.00
per share.
Tucker Anthony performed a sensitivity analysis on these calculations by
basing additional calculations on the Company's Projections for the year ending
January 1, 2000. These calculations resulted in per share values of $13.72,
$18.94 and $8.15 based upon multiples of projected EBIT, EBITDA and Revenues.
Tucker Anthony noted that these per share values were not comparable to the
comparable company calculations and the per share values derived therefrom
discussed above. However, Tucker Anthony believed that they were consistent with
its above historical analysis and compared these per share values to the
Company's one-week-prior stock price of $11.125 and the proposed consideration
of $16.00 per share.
ANALYSIS OF SELECTED COMPARABLE 100% ACQUISITION TRANSACTIONS. Tucker
Anthony reviewed 103 transactions that Tucker Anthony deemed relevant. The
transactions were 100% acquisitions and were chosen based on a review of
acquired companies that possessed general business, operating and financial
characteristics representative of companies in the industries in which
ThermoSpectra's businesses operate. Tucker Anthony noted that none of the
selected transactions reviewed were identical to the proposed transaction and
that, accordingly, the analysis of comparable transactions necessarily involves
complex consideration and judgments concerning differences in financial and
operating characteristics of ThermoSpectra and other factors that would affect
the acquisition value of comparable transactions including, among others, the
general market conditions prevailing in the equity capital markets at the time
of such transactions.
For each comparable transaction, Tucker Anthony calculated multiples of
enterprise value to LTM EBIT, LTM EBITDA and LTM Revenues. Tucker Anthony then
calculated the implied gross enterprise value of ThermoSpectra based upon the
adjusted mean of these multiples. Tucker Anthony calculated the implied equity
value per share by adding the cash balance ($18,094,000) and subtracting the
amount of outstanding debt ($57,326,000) of the Company, each as of April 3,
1999. The resulting amounts were divided by the number of outstanding shares of
Common Stock as of April 30, 1999. These calculations produced per share values
of $3.13, $10.20 and $12.79 based upon the Company's LTM EBIT, LTM EBITDA and
LTM Revenues for the twelve months ending April 3, 1999, respectively. Tucker
Anthony performed a sensitivity analysis for these calculations based upon the
Company's projected EBIT, EBITDA and Revenues for the year ending January 1,
2000. These calculations produced per share values of $12.97, $23.09 and $13.50,
respectively. While Tucker Anthony noted that values associated with 100%
acquisitions differed from those in a remaining minority interest acquisition
such as the proposed transaction, Tucker Anthony compared these per share values
to the proposed consideration of $16.00.
DISCOUNTED CASH FLOW ANALYSIS. Tucker Anthony performed a discounted cash
flow analysis of ThermoSpectra using ThermoSpectra's Projections for 1999
through 2003, without taking into account any potential cost savings and
efficiencies that may be realized following the Merger. In such analysis, Tucker
Anthony assumed terminal value multiples of 11.0x to 13.0x EBIT in the year 2003
and discount rates of 15.7% to 17.7%. Selection of an appropriate discount rate
is an inherently subjective process and is affected by numerous factors. The
discount rates used by Tucker Anthony were selected based upon its calculation
of ThermoSpectra's weighted average cost of capital. This analysis produced
present values of the Common Stock ranging from $17.37 to $22.10 per share.
Tucker Anthony also performed a sensitivity analysis, resulting in the Revised
Projections, taking into account the possibility that ThermoSpectra may be able
to attain an operating margin in future years of only 11.0% compared to a range
of projected operating margins of 14.0% in 2000 to 17.4% in 2003 in the
Projections. Tucker Anthony noted that the Company's historical operating
margins were 9.7% in 1994, 8.5% in 1995, 8.8% in 1996, 6.4% in 1997 and 5.4% in
1998 and 3.3% in the quarter ending April 3, 1999. Tucker Anthony also noted
that the operating margins in the Projections were substantially in excess of
the operating margins achieved by comparable
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<PAGE>
companies. This analysis produced present values of ThermoSpectra's Common Stock
ranging from $10.71 to $13.72.
Tucker Anthony noted that the per share present values in its discounted
cash flow analysis represented values attributable to a 100% acquisition. As
such, these values included a control premium that was not comparable to this
remaining minority interest transaction. While Tucker Anthony compared the above
present values per share to the proposed consideration of $16.00 per share, it
did so only with reference to this context. Tucker Anthony also compared these
present values per share to the per share values of $3.13 to $23.09 derived from
its analysis of comparable merger and acquisition transactions involving 100%
acquisitions discussed above.
Tucker Anthony also reviewed and analyzed a discounted cash flow analysis
presented to the Special Committee by Thermo Instrument as support for its
initial offer of $13.00 per share made on March 19, 1999. The methodology of
this analysis differed from that used by Tucker Anthony in its analyses. Tucker
Anthony advised the Special Committee that it believed two assumptions upon
which, in part, Thermo Instrument's analysis was based were disputable. First,
Thermo Instrument's analysis assumed a 2% terminal cash flow growth rate for the
business whereas Tucker Anthony proposed a 5% growth rate as being more
appropriate. Tucker Anthony felt a 2% terminal cash flow growth rate was too
low, as it essentially inferred no real growth, since inflation has historically
been approximately 2%. Furthermore, Tucker Anthony noted that the 2% terminal
cash flow growth rate was significantly less than the actual growth rate
projected by Thermo Instrument for the preceding ten years. Second, Thermo
Instrument's analysis assumed a requirement for net operating assets, or working
capital, based upon the expected growth rate that was substantially in excess of
what Tucker Anthony believed such requirement to be.
At the request of the Special Committee, Tucker Anthony modified Thermo
Instrument's discounted cash flow analysis in these two areas. These changes
resulted in a per share present value of $19.65. Subsequently, in response to
these proposed modifications, Tucker Anthony and Thermo Instrument management
discussed the appropriateness of such modifications. It was agreed that the
analysis should be modified to cover a five-year period rather than a 10-year
period. Tucker Anthony preferred using a five-year period since Tucker Anthony
felt the accuracy of a projection beyond that length of time becomes
questionable and a five-year period is sufficient to capture both the internal
dynamics of the business as well as the macro-economic impact of an economic
cycle. This analysis resulted in a per share present value of $16.41. Tucker
Anthony noted that this per share value was based upon the Projections, not the
Revised Projections, and was attributable to a 100% acquisition rather than a
remaining minority interest transaction.
The foregoing summary does not purport to be a complete description of the
analyses performed by Tucker Anthony. The preparation of a fairness opinion is a
complex process and is not susceptible to partial analysis or summary
description. Tucker Anthony believes that its analyses must be considered as a
whole, and that selecting portions of such analysis without considering all
analyses and factors, would create an incomplete view of the processes
underlying its opinion. Tucker Anthony did not attempt to assign specific
weights to particular analyses. However, there were no specific factors reviewed
by Tucker Anthony that did not support its opinion. Any estimates contained in
Tucker Anthony's analyses are not necessarily indicative of actual values, which
may be significantly more or less favorable than as set forth therein. Estimates
of values of companies do not purport to be appraisals or necessarily to reflect
the prices at which companies may actually be sold. Because such estimates are
inherently subject to uncertainty, Tucker Anthony does not assume responsibility
for their accuracy.
Pursuant to the terms of Tucker Anthony's engagement letter dated
February 2, 1999 with the Special Committee, the Company paid Tucker Anthony a
retainer fee of $50,000 and a fee of $100,000 for the preparation and delivery
of its written fairness opinion dated May 21, 1999 (which fee was payable
regardless of the conclusions expressed therein). In addition, the Company has
agreed to pay Tucker Anthony an additional $75,000 if the Merger is consummated.
The Company has also agreed to reimburse
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<PAGE>
Tucker Anthony up to $10,000 for its out-of-pocket expenses, including the
reasonable fees and disbursements of its counsel, arising in connection with its
engagement, and to indemnify Tucker Anthony, its affiliates and their respective
directors, officers, employees and agents to the fullest extent permitted by law
against certain liabilities, including liabilities under the federal securities
laws, relating to or arising out of its engagement, except for liabilities found
to have resulted from the bad faith, gross negligence or intentional or reckless
misconduct of Tucker Anthony.
In the past, Tucker Anthony has not performed investment banking services
for ThermoSpectra or received any compensation from ThermoSpectra, other than as
provided for in the engagement letter. Additionally, it has been over eight
years since Tucker Anthony has provided any investment banking services to
Thermo Electron or its subsidiaries.
PURPOSE AND REASONS OF THERMO INSTRUMENT AND THERMO ELECTRON FOR THE MERGER
The purpose of Thermo Instrument and Thermo Electron for engaging in the
transactions contemplated by the Merger Agreement is for Thermo Instrument to
acquire all of the outstanding shares of Common Stock, other than the shares
held by Thermo Electron. In determining to acquire such shares of Common Stock
at this time, Thermo Instrument and Thermo Electron considered the following
factors: (i) the past performance of ThermoSpectra and its future business
prospects, as well as the potential benefits to ThermoSpectra's business if it
were to become part of a larger business unit; (ii) the latest market trends in
the markets in which the Company competes, primarily the cyclicality of the
semiconductor industry; (iii) the substantial debt owed by the Company to,
primarily, Thermo Electron; (iv) the reduction in the amount of public
information available to competitors about ThermoSpectra's business that would
result from the termination of the Company's obligations under the Commission
reporting requirements; (v) the elimination of additional burdens on management
associated with public reporting and other tasks resulting from the Company's
public company status, including, for example, the dedication of time and
resources of management and of the Board members to stockholder and analyst
inquiries, and investor and public relations; (vi) the decrease in costs,
particularly those associated with being a public company (for example, as a
privately-held entity, the Company would no longer be required to file quarterly
and annual reports with the Commission or publish and distribute to its
stockholders annual reports and proxy statements), that Thermo Electron and
Thermo Instrument anticipate could result in savings of approximately $450,000
per year, which estimate includes the approximate cost of the associated legal
and accounting fees; and (vii) the greater flexibility that the Company's
management would have to focus on long-term business goals, as opposed to
quarterly earnings, as a private company.
Thermo Instrument and Thermo Electron also considered the advantages and
disadvantages of certain alternatives to taking ThermoSpectra private, including
(i) selling their respective equity interests in the Company and (ii) leaving
ThermoSpectra as a public majority-owned subsidiary of Thermo Instrument. The
first alternative, that of selling their respective equity interests in the
Company, was briefly considered by Thermo Electron management, but it was not an
alternative that was pursued as reasonable, given that Thermo Electron did not
want to sell its equity interest, and did not want Thermo Instrument to sell its
equity interest, in the Company. The advantages to leaving ThermoSpectra as a
majority-owned, public subsidiary that Thermo Instrument and Thermo Electron
considered included (i) the ability of Thermo Instrument to invest the cash that
would be required to buy the minority stockholder interest in ThermoSpectra in
alternative uses and (ii) maintaining the potential access ThermoSpectra has to
capital in the public markets as a public company. The disadvantages to leaving
ThermoSpectra as a majority-owned, public subsidiary that Thermo Instrument and
Thermo Electron considered included (i) the burden on ThermoSpectra of
substantial debt owed primarily to Thermo Electron, (ii) the costs associated
with being a public company and (iii) the public information available to
competitors about ThermoSpectra's business as result of its filing obligations
with the Commission.
Thermo Instrument and Thermo Electron also considered the number of
ThermoSpectra shares held by the Minority Stockholders, recent trends in the
price of the Common Stock and the relative lack of liquidity for the Common
Stock. Thermo Instrument and Thermo Electron reviewed the net overall cost of
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<PAGE>
the transaction and its benefits, including its contribution to Thermo
Instrument's earnings. Thermo Instrument also explored alternative uses for the
cash proposed to be used for this transaction. After consideration of these
various factors, Thermo Instrument and Thermo Electron decided to make a
proposal to ThermoSpectra to acquire for cash, through a merger, all of the
outstanding shares of Common Stock that Thermo Instrument and Thermo Electron
did not own at a price of $16.00 per share, which represented a premium of
(i) approximately 71% over the closing price of the Common Stock reported in the
consolidated transaction reporting system on August 11, 1998, the day
immediately prior to Thermo Electron's first public announcement of the proposal
to take ThermoSpectra private and (ii) approximately 39% over the closing price
of the Common Stock reported in the consolidated transaction reporting system on
May 20, 1999, the day immediately prior to the public announcement of the
financial terms of Thermo Instrument's proposal. Thermo Instrument proposed to
structure the transaction as a cash merger in order to transfer ownership of the
equity interest in the Company in a single transaction and provide the
stockholders other than Thermo Instrument and Thermo Electron with prompt
payment in cash in exchange for their shares.
Thermo Electron beneficially owns, in the aggregate, directly and indirectly
through Thermo Instrument, approximately 92% of the outstanding Common Stock.
See "SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT--Principal
Stockholder."
The Minority Stockholders should be aware that as a result of the Merger,
the entire equity interest in ThermoSpectra would be beneficially owned by
Thermo Electron, directly and indirectly through Thermo Instrument. The Minority
Stockholders would no longer have any interest in, and would not be stockholders
of, ThermoSpectra, and therefore would not participate in ThermoSpectra's future
earnings and potential growth. Additionally, upon consummation of the Merger,
the Common Stock would no longer be traded on the AMEX, price quotations with
respect to sales of shares in the public market would no longer be available and
the registration of the Common Stock under the Exchange Act would be terminated.
See "--Certain Effects of the Merger."
POSITION OF THERMO INSTRUMENT AND THERMO ELECTRON AS TO FAIRNESS OF THE MERGER
Thermo Instrument and Thermo Electron considered the analyses and findings
of (i) Tucker Anthony with respect to the fairness, from a financial point of
view, of the consideration of $16.00 per share in cash payable under the Merger
Agreement to the Minority Stockholders (see "--Opinion of Financial Advisor")
and (ii) the Special Committee and the Board with respect to the fairness of the
Merger to the Minority Stockholders (see "--The Special Committee's and the
Board's Recommendation"). As of the date of the Merger Agreement, each of Thermo
Instrument and Thermo Electron adopted the analyses and findings of the Special
Committee and the Board with respect to the fairness of the Merger. Based on the
analyses and findings of Tucker Anthony and the Special Committee, Thermo
Instrument and Thermo Electron believe that the Merger is both procedurally and
substantively fair to the Minority Stockholders and that the Cash Merger
Consideration is fair to the Minority Stockholders from a financial point of
view. Neither Thermo Instrument nor Thermo Electron attached specific weights to
any factors in reaching its respective belief as to fairness. Thermo Instrument
and Thermo Electron are not making any recommendation as to how the Minority
Stockholders should vote on the Merger Agreement.
Certain officers and directors of Thermo Instrument and Thermo Electron are
also officers and directors of the Company and have certain interests that are
in addition to, or different from, the interests of the Minority Stockholders.
See "--Conflicts of Interest." Thermo Instrument and Thermo Electron considered
these potential conflicts of interest and based in part thereon, Thermo
Instrument's proposed offer was conditioned on, among other things, the approval
of the Merger by the Special Committee and the receipt by the Special Committee
of a fairness opinion from an investment banking firm.
CONFLICTS OF INTEREST
In considering the recommendation of the Board with respect to the Merger,
the Minority Stockholders should be aware that certain officers and directors of
ThermoSpectra have interests in connection with
37
<PAGE>
the Merger that present them with actual or potential conflicts of interest, as
summarized below. The Special Committee and the Board were aware of these
interests and did not view them either positively or negatively, but considered
them among the other matters described above under "--The Special Committee's
and the Board's Recommendation."
Following consummation of the Merger, the current officers and directors of
ThermoSpectra will continue as the initial officers and directors of the
Surviving Corporation; however, Thermo Instrument intends to appoint a board of
directors comprised solely of members of the Surviving Corporation's and Thermo
Instrument's management after the Merger. Officers and directors who own Common
Stock will receive the Cash Merger Consideration on the same terms as all the
other stockholders.
SPECIAL COMMITTEE
As compensation for serving on the Special Committee, which formally met on
16 occasions, either in person or telephonically, from December 1998 through the
date of this Proxy Statement, the Board has authorized that each member of the
Special Committee receive a one-time special retainer fee of $20,000 and
additional fees of $1,000 for each meeting attended in person and $500 for each
meeting attended telephonically.
The members of the Special Committee hold options to acquire an aggregate of
2,000 shares of Common Stock, at exercise prices of $15.33, which will be
assumed by Thermo Instrument and converted into options to acquire shares of
Thermo Instrument Common Stock on the same terms as all the other holders of
ThermoSpectra Stock Options. See "THE MERGER--Assumption of ThermoSpectra Stock
Options by Thermo Instrument." Further, deferred units equal to 103 shares of
Common Stock have accumulated under the Company's deferred compensation plan for
directors for the benefit of Mr. Baute, which units will be converted into the
right to receive the Cash Merger Consideration per unit for an aggregate cash
payment of $1,648. See "THE MERGER--Deferred Compensation Plan for Directors."
Mr. Baute is also a member of the board of directors of Metrika Systems
Corporation, a majority-owned subsidiary of Thermo Instrument, and Mr. Beaubien
is also a member of the board of directors of ONIX Systems Inc., a
majority-owned subsidiary of Thermo Instrument. See "MANAGEMENT." Mr. Baute and
Mr. Beaubien, as compensation for serving on the board of directors of Metrika
Systems Corporation and ONIX Systems Inc., respectively, also each receive an
annual retainer fee of $4,000 and additional fees of $1,000 for each regular
board meeting attended in person and $500 for each board meeting attended
telephonically and for participating in certain meetings of committees of the
board of directors.
THE THERMOSPECTRA DIRECTORS AND EXECUTIVE OFFICERS
The members of the Board of Directors (other than the members of the Special
Committee) and the executive officers of ThermoSpectra own in the aggregate
40,610 shares of Common Stock and will receive a payment for their shares of
Common Stock in the aggregate amount of $649,760 upon consummation of the
Merger. In addition, such Board members and executive officers hold options to
acquire an aggregate of 362,300 shares of Common Stock, with exercise prices
ranging from $9.53 to $15.33, which will be assumed by Thermo Instrument and
converted into options to acquire shares of Thermo Instrument Common Stock on
the same terms as all the other holders of ThermoSpectra Stock Options. See "THE
MERGER--Assumption of ThermoSpectra Stock Options by Thermo Instrument."
Further, deferred units equal to 22 shares of Common Stock have accumulated
under the Company's deferred compensation plan for directors for the benefit of
Elias P. Gyftopoulos, which units will be converted into the right to receive
the Cash Merger Consideration per unit for an aggregate cash payment of $352.
See "THE MERGER--Deferred Compensation Plan for Directors." See "SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT--Management," for
information regarding beneficial ownership by the Board and executive officers
of Common Stock and common stock of Thermo Instrument and Thermo Electron.
38
<PAGE>
Further, certain members of the Board and certain executive officers hold
directorship or officer positions with Thermo Instrument and/or Thermo Electron.
For a description of such positions, see "MANAGEMENT" and the information
contained in Appendix D to this Proxy Statement.
INDEMNIFICATION AND INSURANCE
The Merger Agreement provides that for a period of six years after the
Effective Time, Thermo Instrument will, and will cause the Surviving Corporation
to, fulfill and honor in all respects the indemnification obligations of
ThermoSpectra, pursuant to ThermoSpectra's Certificate of Incorporation and
Bylaws, each as in effect immediately prior to the Effective Time, to those
individuals who were directors, including the members of the Special Committee,
or officers of ThermoSpectra at the Effective Time. The Surviving Corporation's
Certificate of Incorporation and Bylaws will contain the provisions with respect
to indemnification and elimination of liability for monetary damages currently
set forth in ThermoSpectra's Certificate of Incorporation and Bylaws, and such
provisions will not be amended, repealed or otherwise modified for a period of
six years from the Effective Time in any manner that would adversely affect the
rights of those individuals who were directors or officers of ThermoSpectra at
the Effective Time, unless such modification is required by law. See "THE
MERGER--Indemnification and Insurance."
In addition, Thermo Instrument will cause the Surviving Corporation, either
directly or through participation in Thermo Electron's umbrella policy, to
maintain in effect, for a period of six years after the Effective Time, a
directors' and officers' liability insurance policy covering the ThermoSpectra
directors and officers who, at the Effective Time, were then covered by Thermo
Electron's liability insurance policy, with coverage providing substantially the
same amount and scope as such director's and officer's existing coverage.
However, in no event will the Surviving Corporation be required to pay premiums
for such insurance in excess of 175% of the current annual premiums, as adjusted
for inflation each year, allocable to and paid by ThermoSpectra. See "THE
MERGER--Indemnification and Insurance."
CERTAIN EFFECTS OF THE MERGER
As a result of the Merger, the entire equity interest in the Company will be
beneficially owned by Thermo Electron, directly and indirectly through Thermo
Instrument. Thermo Electron and Thermo Instrument will have complete control
over the conduct of the Company's business and will have 100% interest in the
net book value and net earnings of the Company and any future increases in the
value of the Company. Thermo Instrument's and Thermo Electron's combined
ownership of the Company prior to the transaction contemplated herein aggregated
approximately 92%. Upon completion of this transaction, Thermo Instrument's and
Thermo Electron's aggregate interest in the Company's net book value of
$129.7 million on July 3, 1999 and net earnings of $1.8 million and $0.6 million
for the year ended January 2, 1999 and the six months ended July 3, 1999,
respectively, would increase from approximately 92% of such amounts to 100% of
such amounts. The Minority Stockholders will no longer have any interest in, and
will not be stockholders of, ThermoSpectra and therefore will not participate in
ThermoSpectra's future earnings and potential growth and will no longer bear the
risk of any decreases in the value of the Company. Instead, the stockholders of
the Company other than Thermo Instrument, Thermo Electron and holders who
perfect their Dissenters' Rights will have the right to receive the Cash Merger
Consideration for each share held.
In addition, upon consummation of the Merger, the Common Stock will no
longer be traded on the AMEX, price quotations with respect to sales of shares
in the public market will no longer be available and the registration of the
Common Stock under the Exchange Act will be terminated. The termination of
registration of the Common Stock under the Exchange Act will eliminate the
Company's obligation to file periodic financial and other information with the
Commission and will make most of the provisions of the Exchange Act, such as the
short-swing profit recovery provisions of Section 16(b) and the requirement of
furnishing a proxy or information statement in connection with stockholders'
meetings, no longer applicable.
39
<PAGE>
For federal income tax purposes, the receipt of the Cash Merger
Consideration by holders of Common Stock pursuant to the Merger will be a
taxable sale of the holder's Common Stock. See "FEDERAL INCOME TAX
CONSEQUENCES."
CONDUCT OF THERMOSPECTRA'S BUSINESS AFTER THE MERGER
ThermoSpectra, Thermo Instrument and Thermo Electron are continuing to
evaluate ThermoSpectra's business, assets, practices, operations, properties,
corporate structure, capitalization, management and personnel and discuss what
changes, if any, will be desirable. Subject to the foregoing, for the
foreseeable future, Thermo Instrument and Thermo Electron expect that the
day-to-day business and operations of ThermoSpectra will be conducted
substantially as they are currently being conducted by ThermoSpectra. Thermo
Instrument and Thermo Electron are considering the sale of certain ThermoSpectra
businesses, but do not currently have any commitment or agreement for any such
sales. Additionally, Thermo Electron and Thermo Instrument do not currently
contemplate any material change in the composition of ThermoSpectra's current
management except that Thermo Instrument intends to appoint a board of directors
comprised solely of members of the Surviving Corporation's and Thermo
Instrument's management after the Merger.
CONDUCT OF THERMOSPECTRA'S BUSINESS IF THE MERGER IS NOT CONSUMMATED
If the Merger is not consummated, the Board of Directors expects that the
Company's current management will continue to operate the Company's business
substantially as presently operated, except with respect to certain businesses
that are being considered for sale. See "--Conduct of ThermoSpectra's Business
After the Merger."
40
<PAGE>
THE SPECIAL MEETING
PROXY SOLICITATION
This Proxy Statement is being delivered to ThermoSpectra's stockholders in
connection with the solicitation by the Board of proxies to be voted at the
Special Meeting to be held on Thursday, December 9, 1999 at 10:00 a.m., local
time, at the offices of Thermo Electron Corporation, 81 Wyman Street, Waltham,
Massachusetts 02454. All expenses incurred in connection with solicitation of
the enclosed proxy will be paid by the Company. Officers, directors and regular
employees of the Company, who will receive no additional compensation for their
services, may solicit proxies by telephone or personal call. The Company has
requested brokers and nominees who hold stock in their names to furnish this
proxy material to their customers and the Company will reimburse such brokers
and nominees for their related out-of-pocket expenses. This Proxy Statement and
the accompanying Proxy Card are first being mailed to stockholders of the
Company on or about November 4, 1999.
RECORD DATE AND QUORUM REQUIREMENT
A committee of the Board has fixed the close of business on October 15, 1999
as the Record Date for the determination of stockholders entitled to notice of,
and to vote at, the Special Meeting. Each holder of record of Common Stock at
the close of business on the Record Date is entitled to one vote for each share
then held on each matter submitted to a vote of stockholders. At the close of
business on the Record Date, there were 15,390,488 shares of Common Stock issued
and outstanding held by 180 holders of record and by approximately 800 persons
or entities holding in nominee name.
The holders of a majority of the outstanding shares entitled to vote at the
Special Meeting must be present in person or represented by proxy to constitute
a quorum for the transaction of business. Abstentions will be counted as shares
present or represented at the Special Meeting for purposes of determining
whether a quorum exists. If you hold your shares of Common Stock through a
broker, bank or other nominee, generally the nominee may only vote the Common
Stock that it holds for you in accordance with your instructions. However, if it
has not timely received your instructions, the nominee may only vote on matters
for which it has discretionary voting authority. Brokers will not have
discretionary voting authority with respect to the proposal to approve the
Merger Agreement. If a nominee cannot vote on a particular matter because it
does not have discretionary voting authority, this is a "broker non-vote" on
that matter. Broker non-votes will not be counted as shares present and entitled
to vote for purposes of determining the presence or absence of a quorum for the
transaction of business at the Special Meeting.
VOTING PROCEDURES
Under Delaware law, holders of a majority of the outstanding shares of
Common Stock entitled to vote at the Special Meeting must vote to approve the
Merger Agreement. The Merger Agreement is attached to this Proxy Statement as
Appendix A. For the purposes of the vote required under Delaware law, a failure
to vote, a vote to abstain and a broker non-vote will each have the same legal
effect as a vote cast against approval of the Merger Agreement. Thermo
Instrument, which owns approximately 82% of the outstanding Common Stock, and
Thermo Electron, which owns approximately 10% of the outstanding Common Stock,
own enough shares of Common Stock to vote to approve the Merger Agreement under
Delaware law without the vote of the Minority Stockholders and intend to vote
their shares in favor of the Merger Agreement.
If a properly executed Proxy Card is submitted and no instructions are
given, the shares of Common Stock represented by that Proxy Card will be voted
"FOR" approval of the proposed Merger Agreement.
The Board is not aware of any other matters to be voted on at the Special
Meeting. If any other matters properly come before the Special Meeting,
including a motion to adjourn the Special Meeting for
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<PAGE>
the purpose of soliciting additional proxies, the persons named on the
accompanying Proxy Card will vote the shares represented by all properly
executed proxies on such matters in their discretion, except that shares
represented by proxies that have been voted "AGAINST" approval of the Merger
Agreement will not be used to vote "FOR" adjournment of the Special Meeting for
the purpose of allowing additional time to solicit additional votes "FOR" the
Merger Agreement.
Under Delaware law, holders of Common Stock who comply with certain notice
requirements, do not vote in favor of the Merger Agreement and comply with
certain other procedures will have the right to dissent and to be paid cash for
the fair value of their shares as finally determined in accordance with the
procedures under Delaware law. The fair value, as finally determined, may be
more or less than the consideration to be received by other stockholders of
ThermoSpectra under the terms of the Merger Agreement. Failure to follow such
procedures under Delaware law precisely will result in the loss of Dissenters'
Rights. See "RIGHTS OF DISSENTING STOCKHOLDERS."
VOTING AND REVOCATION OF PROXIES
A stockholder giving a proxy has the power to revoke it at any time before
it is exercised by (i) filing with the Secretary of ThermoSpectra an instrument
revoking it, (ii) submitting a duly executed proxy bearing a later date or
(iii) voting in person at the Special Meeting. Subject to such revocation, all
shares represented by each properly executed proxy received by the Secretary of
ThermoSpectra will be voted in accordance with the instructions indicated
thereon, and if no instructions are indicated, will be voted to approve the
Merger Agreement. The shares represented by the accompanying Proxy Card and
entitled to vote will be voted if the Proxy Card is properly signed and received
by the Secretary of the Company prior to the Special Meeting.
EFFECTIVE TIME
The Merger will be effective as soon as practicable following stockholder
approval of the Merger Agreement at the Special Meeting and satisfaction or
waiver of the terms and conditions set forth in the Merger Agreement, and upon
the filing of the Certificate of Merger with the Secretary of State of the State
of Delaware. See "THE MERGER--Conditions."
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THE MERGER
The Merger Agreement provides that the Merger Sub, a newly-formed Delaware
corporation that is a wholly owned subsidiary of Thermo Instrument, will be
merged with and into ThermoSpectra, and that following the Merger, the separate
existence of the Merger Sub will cease and ThermoSpectra will continue as the
Surviving Corporation.
The terms of and conditions to the Merger are contained in the Merger
Agreement that is included in full as Appendix A to this Proxy Statement and is
incorporated herein by reference. The discussion in this Proxy Statement of the
Merger, and the summary description of all material terms of the Merger
Agreement that is contained in this section, are subject to and qualified in
their entirety by reference to the more complete information set forth in the
Merger Agreement.
CONVERSION OF SECURITIES
At the Effective Time, subject to the terms, conditions and procedures set
forth in the Merger Agreement, each share of Common Stock issued and outstanding
immediately prior to the Effective Time (other than shares held by stockholders
exercising Dissenters' Rights, shares held in treasury by ThermoSpectra and
shares held by Thermo Instrument and Thermo Electron) will, by virtue of the
Merger, be converted into the right to receive the Cash Merger Consideration.
Except for the right to receive the Cash Merger Consideration, from and after
the Effective Time, all shares (other than shares held by stockholders
exercising Dissenters' Rights, shares held in treasury by ThermoSpectra and
shares held by Thermo Instrument and Thermo Electron), by virtue of the Merger
and without any action on the part of the holders, will no longer be outstanding
and will be canceled and retired and will cease to exist. Each holder of a stock
certificate formerly representing any shares (other than shares held by
stockholders exercising Dissenters' Rights, shares held in treasury by
ThermoSpectra and shares held by Thermo Instrument and Thermo Electron) will
after the Effective Time cease to have any rights with respect to such shares
other than the right to receive the Cash Merger Consideration for such shares
upon surrender of the stock certificate.
No interest will be paid or accrued on the amount payable upon the surrender
of any stock certificate. Payment to be made to a person other than the
registered holder of the stock certificate surrendered is conditioned upon the
stock certificate so surrendered being properly endorsed and otherwise in proper
form for transfer, as determined by the Payment Agent. Further, the person
requesting such payment will be required to pay any transfer or other taxes
required by reason of the payment to a person other than the registered holder
of the stock certificate surrendered or establish to the satisfaction of the
Payment Agent that such tax has been paid or is not payable. Six months
following the Effective Date, Thermo Instrument may require the Payment Agent to
deliver to it any funds made available to the Payment Agent that have not been
disbursed to holders of stock certificates formerly representing shares
outstanding prior to the Effective Time. After such time and with respect to
cash payable upon due surrender of their stock certificates, holders of
ThermoSpectra stock certificates will have no greater rights against Thermo
Instrument than as may be accorded to general creditors of Thermo Instrument.
Notwithstanding the foregoing, neither the Payment Agent nor any party to the
Merger Agreement will be liable to any holder of stock certificates formerly
representing shares for any amount paid to a public official pursuant to any
applicable abandoned property, escheat or similar law.
At the Effective Time, subject to the terms, conditions and procedures set
forth in the Merger Agreement, each share of Common Stock issued and outstanding
immediately prior to the Effective Time held by Thermo Instrument and Thermo
Electron will, by virtue of the Merger, be converted at the Effective Time into
one share of common stock of the Surviving Corporation. Each share of the Merger
Sub's common stock that is issued and outstanding immediately prior to the
Merger will, at the Effective Time, cease to be outstanding, be canceled and
retired without payment of any consideration therefor and cease to exist. All
shares held in treasury by ThermoSpectra immediately prior to the Effective Time
will,
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at the Effective Time, cease to be outstanding, be canceled and retired without
payment of any consideration therefor and cease to exist. Shares of Common Stock
held by persons properly exercising Dissenters' Rights will not be converted
into the Cash Merger Consideration in the Merger and after the Effective Time
will represent only the right to receive such consideration as is determined to
be due such dissenting stockholder pursuant to Section 262 of the DGCL. See
"RIGHTS OF DISSENTING STOCKHOLDERS."
ASSUMPTION OF THERMOSPECTRA STOCK OPTIONS BY THERMO INSTRUMENT
ThermoSpectra has, from time to time, issued options to acquire Common Stock
pursuant to its Park Scientific Instruments Corporation 1988 Incentive Stock
Plan, Equity Incentive Plan, Employees Equity Incentive Plan and Directors'
Stock Option Plan, each as amended (collectively, the "ThermoSpectra Stock
Option Plans"). At the Effective Time, each outstanding ThermoSpectra Stock
Option under the ThermoSpectra Stock Option Plans, whether or not exercisable,
will be assumed by Thermo Instrument. Each ThermoSpectra Stock Option so assumed
by Thermo Instrument will continue to have, and be subject to, the same terms
and conditions set forth in the applicable ThermoSpectra Stock Option Plan
immediately prior to the Effective Time, except that (i) each ThermoSpectra
Stock Option will be exercisable (or will become exercisable in accordance with
its terms) for that number of whole shares of Thermo Instrument Common Stock
equal to the product of the number of shares of Common Stock that were issuable
upon exercise of such ThermoSpectra Stock Option immediately prior to the
Effective Time multiplied by the Exchange Ratio (as defined below), rounded down
to the nearest whole number of shares of Thermo Instrument Common Stock, and
(ii) the per share exercise price for the shares of Thermo Instrument Common
Stock issuable upon exercise of such assumed ThermoSpectra Stock Option will be
equal to the quotient determined by dividing the exercise price per share of
Common Stock at which such ThermoSpectra Stock Option was exercisable
immediately prior to the Effective Time by the Exchange Ratio, rounded up to the
nearest whole cent. The Exchange Ratio is a fraction, the numerator of which is
the Cash Merger Consideration and the denominator of which is the closing price
of Thermo Instrument Common Stock on the day immediately preceding the Effective
Date as reported by the AMEX.
At the Effective Time, each outstanding option to purchase shares of Common
Stock (each a "ThermoSpectra ESPP Stock Option") under the ThermoSpectra
Employees' Stock Purchase Plan (the "ThermoSpectra ESPP") will also be assumed
by Thermo Instrument. Each ThermoSpectra ESPP Stock Option so assumed by Thermo
Instrument will continue to have, and be subject to, the same terms and
conditions as set forth in the ThermoSpectra ESPP immediately prior to the
Effective Time except that (i) the assumed option shall be exercisable for
shares of Thermo Instrument Common Stock; (ii) the purchase price per share of
Thermo Instrument Common Stock shall be the lower of (a) 85% of (x) the per
share market value of the Common Stock on the grant date of the option divided
by (y) the Exchange Ratio, with the resulting price rounded up to the nearest
whole cent, and (b) 85% of the market value of Thermo Instrument Common Stock as
of the exercise date of the option; and (iii) the $25,000 limit under
Section 9.2(i) of the ThermoSpectra ESPP shall be applied by taking into account
Thermo Instrument's assumption of the ThermoSpectra ESPP Stock Options in
accordance with Section 423(b)(8) of the Internal Revenue Code of 1986, as
amended, and applicable regulations.
DEFERRED COMPENSATION PLAN FOR DIRECTORS
At the Effective Time, the ThermoSpectra deferred compensation plan for
directors (the "Deferred Compensation Plan") will terminate, and ThermoSpectra
will distribute to each participant the sum in cash equal to the balance of
stock units credited to his deferred compensation account under the Deferred
Compensation Plan as of the Effective Time multiplied by the Cash Merger
Consideration.
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TRANSFER OF SHARES
Shares of Common Stock will not be transferred on the stock transfer books
at or after the Effective Time. If certificates representing such shares are
presented to ThermoSpectra after the Effective Time, such shares will be
canceled and exchanged for the Cash Merger Consideration.
CONDITIONS
Each party's obligation to effect the Merger is subject to the satisfaction
of each of the following conditions at or prior to the Effective Time:
(i) the Merger Agreement and the transactions contemplated therein shall
have been approved and adopted by the affirmative vote of the holders of
a majority of the outstanding shares of Common Stock entitled to vote
thereon in accordance with the DGCL; and
(ii) no court, administrative agency or commission or other governmental or
regulatory body or authority or instrumentality shall have enacted,
issued, promulgated, enforced or entered any statute, rule, regulation,
executive order, decree, injunction or other order that is in effect
and that has the effect of making the Merger illegal or otherwise
prohibiting consummation of the Merger.
The obligations of ThermoSpectra to effect the Merger are subject to the
satisfaction of each of the following conditions at or prior to the Effective
Time, unless waived in writing by ThermoSpectra (upon approval of the Special
Committee):
(i) the representations and warranties of the Merger Sub and Thermo
Instrument in the Merger Agreement shall be true and correct in all
material respects on and as of the Effective Time, except as otherwise
permitted by the Merger Agreement;
(ii) the Merger Sub and Thermo Instrument shall have performed or complied
in all material respects with all agreements and covenants required by
the Merger Agreement to be performed or complied with by them at or
prior to the Effective Time; and
(iii) ThermoSpectra shall have received a certificate of the President, Chief
Executive Officer or Vice President of Thermo Instrument certifying to
the effect of above clauses (i) and (ii).
The obligations of the Merger Sub and Thermo Instrument to effect the Merger
are subject to the satisfaction of each of the following conditions at or prior
to the Effective Time, unless waived in writing by Thermo Instrument:
(i) the representations and warranties of ThermoSpectra in the Merger
Agreement shall be true and correct in all material respects on and as
of the Effective Time, except as otherwise permitted by the Merger
Agreement;
(ii) ThermoSpectra shall have performed or complied in all material respects
with all agreements and covenants required by the Merger Agreement to
be performed or complied with by it on or prior to the Effective Time;
and
(iii) Thermo Instrument shall have received a certificate of the President,
Chief Executive Officer or Vice President of ThermoSpectra certifying
to the effect of above clauses (i) and (ii).
REPRESENTATIONS AND WARRANTIES
ThermoSpectra has made representations and warranties in the Merger
Agreement regarding, among other things, its organization and good standing,
authority to enter into the Merger Agreement and consummate the transactions
contemplated thereby, its capitalization, requisite governmental and other
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<PAGE>
consents and approvals, the content and submission of forms and reports required
to be filed by ThermoSpectra with the Commission, and its receipt of a fairness
opinion from Tucker Anthony.
Thermo Instrument and the Merger Sub have made representations and
warranties in the Merger Agreement regarding, among other things, their
organization and good standing, authority to enter the Merger Agreement and
consummate the transactions contemplated thereby, adequacy of Thermo
Instrument's financial resources to pay the Cash Merger Consideration, accuracy
of information supplied by Thermo Instrument for submission on forms and reports
required to be filed by ThermoSpectra with the Commission, and requisite
governmental and other consents and approvals.
The representations and warranties of the parties in the Merger Agreement
will expire upon consummation of the Merger. After such expiration, none of the
parties to the Merger Agreement or their respective officers, directors or
principals will have any liability for any such representations or warranties.
COVENANTS
In the Merger Agreement, ThermoSpectra has agreed that during the period
from the date of the Merger Agreement and continuing until the earlier of
termination of the Merger Agreement or the Effective Time, ThermoSpectra will
carry on its business in the usual, regular and ordinary course, substantially
consistent with past practice and will not, without the prior consent of Thermo
Instrument, or unless otherwise permitted by the Merger Agreement:
(i) waive any stock repurchase rights, accelerate, amend or change the
period of exercisability of options or restricted stock, or reprice
options granted under any employee, consultant or director stock plans
or authorize cash payments in exchange for any options granted under any
of such plans;
(ii) enter into any material partnership arrangements, joint development
agreements or strategic alliances;
(iii) grant any severance or termination pay to any officer or employee
except payments in amounts consistent with past practices or pursuant
to written agreements outstanding, or existing policies, or adopt any
new severance plan;
(iv) declare or pay any dividends on or make any other distributions
(whether in cash, stock or property) in respect of any capital stock or
split, combine or reclassify any capital stock or issue or authorize
the issuance of any other securities in respect of, in lieu of or in
substitution for any capital stock;
(v) issue, deliver, sell, authorize or propose the issuance, delivery or
sale of, any shares of its capital stock or any securities convertible
into shares of capital stock, or subscriptions, rights, warrants or
options to acquire any shares of capital stock or any securities
convertible into shares of capital stock, or enter into other agreements
or commitments of any character obligating it to issue any such shares
or convertible securities, other than the issuance of shares of Common
Stock pursuant to the exercise of stock options therefor;
(vi) cause, permit or propose any amendments to its Certificate of
Incorporation or Bylaws;
(vii) acquire or agree to acquire by merging or consolidating with, or by
purchasing any equity interest in or a material portion of the assets
of, or by any other manner, any other business or any corporation,
partnership interest, association or other business organization or
division thereof, or otherwise acquire or agree to acquire any assets
or enter into any joint ventures, strategic partnerships or alliances;
(viii) sell, lease, license, encumber or otherwise dispose of any properties
or assets that are material, individually or in the aggregate, to the
business of ThermoSpectra;
(ix) incur any indebtedness for borrowed money (other than ordinary course
trade payables or pursuant to existing credit facilities in the
ordinary course of business) or guarantee any such
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indebtedness or issue or sell any debt securities or warrants or
guarantee any debt securities of others;
(x) adopt or amend any employee benefit or stock purchase or option plan, or
enter into any employment contract, pay any special bonus or special
remuneration to any director or employee, or increase the salaries or
wage rates of its officers or employees, except increases in amounts
consistent with past practice;
(xi) pay, discharge or satisfy any claim, liability or obligation, other
than the payment, discharge or satisfaction in the ordinary course of
business;
(xii) make any grant of exclusive rights to any third party; or
(xiii) agree in writing or otherwise to take any of the actions described
above.
INDEMNIFICATION AND INSURANCE
The Merger Agreement provides that for a period of six years after the
Effective Time, Thermo Instrument will, and will cause the Surviving Corporation
to, fulfill and honor in all respects the indemnification obligations of
ThermoSpectra, pursuant to ThermoSpectra's Certificate of Incorporation and
Bylaws, each as in effect immediately prior to the Effective Time, to those
individuals who were directors, including the members of the Special Committee,
or officers of ThermoSpectra at the Effective Time. The Surviving Corporation's
Certificate of Incorporation and Bylaws will contain the provisions with respect
to indemnification and elimination of liability for monetary damages currently
set forth in ThermoSpectra's Certificate of Incorporation and Bylaws, and such
provisions will not be amended, repealed or otherwise modified for a period of
six years from the Effective Time in any manner that would adversely affect the
rights of those individuals who were directors or officers of ThermoSpectra at
the Effective Time, unless such modification is required by law.
In addition, Thermo Instrument will cause the Surviving Corporation, either
directly or through participation in Thermo Electron's umbrella policy, to
maintain in effect, for a period of six years after the Effective Time, a
directors' and officers' liability insurance policy covering the ThermoSpectra
directors and officers who, at the Effective Time, were then covered by Thermo
Electron's liability insurance policy, with coverage providing substantially the
same amount and scope as such director's and officer's existing coverage.
However, in no event will the Surviving Corporation be required to pay premiums
for such insurance in excess of 175% of the current annual premiums, as adjusted
for inflation each year, allocable to and paid by ThermoSpectra.
TERMINATION, AMENDMENT AND WAIVER
At any time prior to the Effective Time, whether before or after approval of
the Merger Agreement by the stockholders of ThermoSpectra, the Merger Agreement
may be terminated by the mutual written consent of the board of directors of
Thermo Instrument and the Board of Directors of ThermoSpectra (upon approval of
the Special Committee).
In addition, either Thermo Instrument or ThermoSpectra (upon approval of the
Special Committee), in accordance with the provisions of the Merger Agreement,
may terminate the Merger Agreement prior to the Effective Time, whether before
or after approval of the Merger Agreement by the stockholders of ThermoSpectra,
if (i) the Merger has not been consummated by October 31, 1999, unless such
party's action or inaction constitutes a breach of the Merger Agreement and has
been a principal cause of or resulted in the failure of the Merger to be
consummated, (ii) a court of competent jurisdiction or governmental, regulatory
or administrative agency or commission issues an order, decree or ruling or
takes any other action enjoining, restraining or otherwise prohibiting the
Merger and such order, decree, ruling or action is final and nonappealable or
(iii) the approval of the stockholders of ThermoSpectra necessary to consummate
the Merger has not been obtained, unless such party's action or inaction
constitutes a breach of the Merger Agreement and has been the principal cause of
or resulted in the failure to obtain the requisite stockholder approval to
consummate the Merger.
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In addition, Thermo Instrument may terminate the Merger Agreement prior to
the Effective Time, whether before or after approval of the Merger Agreement by
the stockholders of ThermoSpectra, if ThermoSpectra breaches any representation,
warranty, covenant or agreement and fails to cure such breach within ten
business days after written notice of such breach from Thermo Instrument.
ThermoSpectra may terminate the Merger Agreement prior to the Effective
Time, whether before or after approval of the Merger Agreement by the
stockholders of ThermoSpectra, if (i) ThermoSpectra's Board of Directors, upon
approval of the Special Committee, determines in good faith on the advice of
outside legal counsel that the Board's fiduciary duties under applicable law
require it to do so or (ii) Thermo Instrument breaches any representation,
warranty, covenant or agreement and fails to cure such breach within ten
business days after written notice of such breach from ThermoSpectra.
Subject to the provisions of applicable law, the Merger Agreement may be
amended by the parties thereto at any time by written agreement of the parties;
provided, however, that ThermoSpectra may not amend the Merger Agreement without
the approval of the Special Committee.
SOURCE OF FUNDS
The aggregate consideration payable in the Merger is approximately
$20.4 million. Thermo Instrument intends to finance the Merger entirely from
cash on hand.
EXPENSES
The parties have agreed to pay their own costs and expenses in connection
with the Merger Agreement and the transactions contemplated thereby. Assuming
the Merger is consummated, the estimated costs and fees in connection with the
Merger and the related transactions that will be paid by ThermoSpectra are as
follows:
<TABLE>
<CAPTION>
COST OR FEE ESTIMATED AMOUNT
- ----------- ----------------
<S> <C>
Financial advisory fees..................................... $225,000
Legal fees.................................................. 115,000
Accounting fees............................................. 15,000
Special Committee fees...................................... 64,000
Printing and mailing fees................................... 150,000
Commission filing fees...................................... 3,878
Other regulatory filing fees................................ 5,000
Miscellaneous............................................... 47,122
--------
$625,000
</TABLE>
See "SPECIAL FACTORS--Opinion of Financial Advisor" for a description of the
fees to be paid to Tucker Anthony in connection with its engagement. For a
description of certain fees payable to the members of the Special Committee, see
"SPECIAL FACTORS--Conflicts of Interest."
ACCOUNTING TREATMENT
The Merger will be accounted for as the acquisition of a minority interest
by Thermo Instrument, using the purchase method of accounting.
REGULATORY APPROVALS
No federal or state regulatory approvals are required to be obtained that
have not already been obtained, nor any regulatory requirements complied with,
in connection with the consummation of the Merger by any party to the Merger
Agreement, except for (i) the requirements of the DGCL in connection with
stockholder approvals and consummation of the Merger and (ii) the requirements
of the federal securities laws.
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RIGHTS OF DISSENTING STOCKHOLDERS
Under the DGCL, record holders of shares of Common Stock who follow the
procedures set forth in Section 262 and who have not voted in favor of the
Merger Agreement will be entitled to have their shares of Common Stock appraised
by the Court of Chancery of the State of Delaware and to receive payment of the
fair value of such shares together with a fair rate of interest, if any, as
determined by such court. The fair value as determined by the Delaware court is
exclusive of any element of value arising from the accomplishment or expectation
of the Merger. The following is a summary of certain of the provisions of
Section 262 of the DGCL and is qualified in its entirety by reference to the
full text of Section 262, a copy of which is attached hereto as Appendix C.
Under Section 262, where a merger agreement is to be submitted for approval
and adoption at a meeting of stockholders, as in the case of the Special
Meeting, not less than 20 calendar days prior to the meeting, the Company must
notify each of the holders of Common Stock at the close of business on the
Record Date that such appraisal rights are available and include in each such
notice a copy of Section 262. This Proxy Statement constitutes such notice. Any
stockholder wishing to exercise appraisal rights should review the following
discussion and Appendix C carefully because failure to timely and properly
comply with the procedures specified in Section 262 will result in the loss of
appraisal rights under the DGCL.
A holder of shares of Common Stock wishing to exercise appraisal rights must
deliver to the Company, before the vote on the approval and adoption of the
Merger Agreement at the Special Meeting, a written demand for appraisal of such
holder's shares of Common Stock. Such demand will be sufficient if it reasonably
informs the Company of the identity of the stockholder and that the stockholder
intends thereby to demand the appraisal of his shares. A proxy or vote against
the Merger Agreement will not constitute such a demand. In addition, a holder of
shares of Common Stock wishing to exercise appraisal rights must hold of record
such shares on the date the written demand for appraisal is made and must
continue to hold such shares through the Effective Time.
Only a holder of record of shares of Common Stock is entitled to assert
appraisal rights for the shares of Common Stock registered in that holder's
name. A demand for appraisal should be executed by or on behalf of the holder of
record fully and correctly, as the holder's name appears on the stock
certificates. Holders of Common Stock who hold their shares in brokerage
accounts or other nominee forms and wish to exercise appraisal rights should
consult with their brokers to determine the appropriate procedures for the
making of a demand for appraisal by such nominee. All written demands for
appraisal of Common Stock should be sent or delivered to Sandra L. Lambert,
Secretary, ThermoSpectra Corporation, c/o Thermo Electron Corporation, 81 Wyman
Street, P.O. Box 9046, Waltham, Massachusetts 02454-9046, so as to be received
before the vote on the approval and adoption of the Merger Agreement at the
Special Meeting.
If the shares of Common Stock are owned of record in a fiduciary capacity,
such as by a trustee, guardian or custodian, execution of the demand should be
made in that capacity, and if the shares of Common Stock are owned of record by
more than one person, as in a joint tenancy or tenancy in common, the demand
should be executed by or on behalf of all joint owners. An authorized agent,
including one or more joint owners, may execute a demand for appraisal on behalf
of a holder of record; however, the agent must identify the record owner or
owners and expressly disclose the fact that, in executing the demand, the agent
is agent for such owner or owners. A record holder such as a broker holding
Common Stock as nominee for several beneficial owners may exercise appraisal
rights with respect to the Common Stock held for one or more beneficial owners
while not exercising such rights with respect to the Common Stock held for other
beneficial owners; in such case, the written demand should set forth the number
of shares as to which appraisal is sought and where no number of shares is
expressly mentioned the demand will be presumed to cover all Common Stock held
in the name of the record owner.
Within 10 calendar days after the Effective Time, the Company, as the
Surviving Corporation in the Merger, must send a notice as to the effectiveness
of the Merger to each person who has satisfied the
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appropriate provisions of Section 262 and who has not voted in favor of the
Merger Agreement. Within 120 calendar days after the Effective Time, the
Company, or any stockholder entitled to appraisal rights under Section 262 and
who has complied with the foregoing procedures, may file a petition in the
Delaware Court of Chancery demanding a determination of the fair value of the
shares of all such stockholders. The Company is not under any obligation, and
has no present intention, to file a petition with respect to the appraisal of
the fair value of the shares of Common Stock. Accordingly, it is the obligation
of the stockholders to initiate all necessary action to perfect their appraisal
rights within the time prescribed in Section 262.
Within 120 calendar days after the Effective Time, any stockholder of record
who has complied with the requirements for exercise of appraisal rights will be
entitled, upon written request, to receive from the Company a statement setting
forth the aggregate number of shares of Common Stock with respect to which
demands for appraisal have been received and the aggregate number of holders of
such shares. Such statement must be mailed within 10 calendar days after a
written request therefor has been received by the Company.
If a petition for an appraisal is timely filed, after a hearing on such
petition, the Delaware Court of Chancery will determine the stockholders
entitled to appraisal rights and will appraise the fair value of the shares of
Common Stock, exclusive of any element of value arising from the accomplishment
or expectation of the Merger, together with a fair rate of interest, if any, to
be paid upon the amount determined to be the fair value. Holders considering
seeking appraisal should be aware that the fair value of their shares of Common
Stock as determined under Section 262 could be more than, the same as or less
than the amount per share that they would otherwise receive if they did not seek
appraisal of their shares of Common Stock. The Delaware Supreme Court has stated
that "proof of value by any techniques or methods that are generally considered
acceptable in the financial community and otherwise admissible in court" should
be considered in the appraisal proceedings. In addition, Delaware courts have
decided that the statutory appraisal remedy, depending on factual circumstances,
may or may not be a dissenter's exclusive remedy. The Court will also determine
the amount of interest, if any, to be paid upon the amounts to be received by
persons whose shares of Common Stock have been appraised. The costs of the
action may be determined by the Court and taxed upon the parties as the Court
deems equitable. The Court may also order that all or a portion of the expenses
incurred by any holder of shares of Common Stock in connection with an
appraisal, including, without limitation, reasonable attorneys' fees and the
fees and expenses of experts used in the appraisal proceeding, be charged pro
rata against the value of all the shares of Common Stock entitled to appraisal.
The Court may require stockholders who have demanded an appraisal and who
hold Common Stock represented by certificates to submit their certificates of
Common Stock to the Court for notation thereon of the pendency of the appraisal
proceedings. If any stockholder fails to comply with such direction, the Court
may dismiss the proceedings as to such stockholder.
Any stockholder who has duly demanded an appraisal in compliance with
Section 262 will not, after the Effective Time, be entitled to vote the shares
of Common Stock subject to such demand for any purpose or be entitled to the
payment of dividends or other distributions on those shares (except dividends or
other distributions payable to holders of record of shares of Common Stock as of
a date prior to the Effective Time).
If any stockholder who demands appraisal of shares under Section 262 fails
to perfect, or effectively withdraws or loses, the right to appraisal, as
provided in the DGCL, the shares of Common Stock of such holder will be
converted into the right to receive the Cash Merger Consideration in accordance
with the Merger Agreement, without interest. A stockholder will fail to perfect,
or effectively lose, the right to appraisal if no petition for appraisal is
filed within 120 calendar days after the Effective Time. A stockholder may
withdraw a demand for appraisal by delivering to the Company a written
withdrawal of the demand for appraisal and acceptance of the Merger, except that
any such attempt to withdraw made
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more than 60 calendar days after the Effective Time will require the written
approval of the Company. Once a petition for appraisal has been filed, such
appraisal proceeding may not be dismissed as to any stockholder without the
approval of the Court.
For federal income tax purposes, stockholders who receive cash for their
shares of Common Stock upon exercise of Dissenters' Rights will realize taxable
gain or loss. See "FEDERAL INCOME TAX CONSEQUENCES."
FEDERAL INCOME TAX CONSEQUENCES
The following discussion summarizes the material federal income tax
considerations relevant to the Merger. This discussion is based on currently
existing provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), existing and proposed Treasury Regulations thereunder and current
administrative rulings and court decisions, all of which are subject to change.
Any such change, which may or may not be retroactive, could alter the tax
consequences to the holders of Common Stock as described herein. Special tax
consequences not described below may be applicable to particular classes of
taxpayers, including financial institutions, broker-dealers, persons who are not
citizens or residents of the United States or who are foreign corporations,
foreign partnerships or foreign estates or trusts as to the United States and
holders who acquired their stock through the exercise of an employee stock
option or otherwise as compensation. In addition, the following discussion does
not include any discussion of any state, local or foreign tax consequences that
may result from the Merger.
THIS TAX DISCUSSION IS INCLUDED FOR GENERAL INFORMATION ONLY AND IS BASED
UPON PRESENT UNITED STATES FEDERAL INCOME TAX LAW. EACH HOLDER OF COMMON STOCK
SHOULD CONSULT SUCH HOLDER'S OWN TAX ADVISOR AS TO THE SPECIFIC TAX CONSEQUENCES
OF THE MERGER TO SUCH HOLDER, INCLUDING THE APPLICATION AND EFFECT OF FEDERAL,
STATE, LOCAL AND OTHER TAX LAWS AND THE POSSIBLE EFFECT OF CHANGES IN SUCH TAX
LAWS.
For federal income tax purposes, the receipt of the Cash Merger
Consideration by holders of Common Stock pursuant to the Merger will be a
taxable sale of the holder's Common Stock. Each holder's gain or loss per share
will equal the difference between $16.00 and the holder's basis in the share of
Common Stock. Such gain or loss generally will be a capital gain or loss
provided that the holder has held the Common Stock as a capital asset. Capital
gain or loss will be treated as long-term capital gain or loss if the holder has
held the Common Stock for more than one year, and will be treated as short-term
capital gain or loss if the holder has held the Common Stock for one year or
less.
A holder of Common Stock may be subject to backup withholding at the rate of
31% with respect to Cash Merger Consideration received pursuant to the Merger,
unless the holder (a) is a corporation or comes within certain other exempt
categories and, when required, adequately demonstrates this fact, or
(b) provides a correct taxpayer identification number ("TIN"), certifies as to
no loss of exemption from backup withholding, and otherwise complies with
applicable requirements of the backup withholding rules. To prevent the
possibility of backup withholding, each holder must provide the Payment Agent
with his or her correct TIN by completing a Form W-9 or Substitute Form W-9 or,
in the case of exempt foreign persons, with certain other information by
completing the appropriate Form W-8 or Substitute Form W-8. A holder of Common
Stock who does not provide the above information may be subject to penalties
imposed by the Internal Revenue Service (the "IRS"), as well as backup
withholding. Any amount withheld under these rules will be creditable against
the holder's federal income tax liability. Thermo Instrument (or its agent) will
report to the holders of Common Stock and the IRS the amount of any "reportable
payments," as defined in Section 3406 of the Code, and the amount of tax, if
any, withheld with respect thereto.
Neither the Company, Merger Sub nor Thermo Instrument will recognize gain or
loss for federal income tax purposes as a result of the Merger.
51
<PAGE>
BUSINESS OF THE COMPANY
OVERVIEW
ThermoSpectra was incorporated in 1994 as an indirect wholly owned
subsidiary of Thermo Instrument, a publicly traded subsidiary of Thermo
Electron. The Company develops, manufactures and markets imaging and inspection,
temperature control and test and measurement instruments. These instruments are
generally combined with proprietary operations and analysis software to provide
industrial and research customers with integrated systems that address their
specific needs. The Company's imaging and inspection products include X-ray
microanalysis instruments, X-ray fluorescence instruments, nondestructive X-ray
inspection systems, specialty X-ray tubes, as well as confocal laser scanning
microscopes. The Company broadened its product offerings to include scanning
probe microscopes through the acquisitions of Park Scientific Instruments
Corporation ("PSI") in March 1997 and TopoMetrix Corporation ("TopoMetrix") in
October 1998. These two businesses were subsequently combined to form
ThermoMicroscopes Corp. ("ThermoMicroscopes"). In addition, the Company acquired
Sierra Research and Technology, Inc. ("SRT") in July 1997, a manufacturer of
systems that rework and repair printed circuit boards that have failed quality
control inspection. The Company expanded into temperature control instruments
with its March 1997 acquisition of NESLAB Instruments, Inc. ("NESLAB"), which
manufactures temperature control systems for analytical, laboratory, industrial,
research and development, laser and semiconductor applications. The Company's
test and measurement instruments include data-acquisition systems, digital
oscillographic recorders and digital storage oscilloscopes used primarily in
product development and process monitoring settings.
IMAGING AND INSPECTION INSTRUMENTS
The Company's Kevex Instruments Inc. ("Kevex Instruments") and NORAN
Instruments Inc. ("NORAN") subsidiaries manufacture X-ray analytical instruments
enhanced by real-time digital imaging technology for the electronics, aerospace
and automotive industries, among others. Product lines in this segment include
several X-ray microanalysis instruments that analyze the chemical composition of
microscopic samples by detecting, collecting, sorting and measuring X-rays
emitted by a sample that has been excited by an energy source. The Company also
manufactures a range of X-ray fluorescence instruments that incorporate an X-ray
source into the instrument to excite the sample. Industrial customers,
universities and government laboratories represent the majority of the end users
of X-ray microanalysis systems. Over 50% of the Company's sales of X-ray
microanalyzers are to electron microscope manufacturers for resale to end-users.
The Company sells its X-ray microanalyzers and X-ray fluorescence instruments in
the United States through a direct sales force; through a combination of direct
salespeople, distributors and sales representatives in Europe, Japan and the
rest of the Pacific Rim; and through original equipment manufacturer ("OEM")
relationships with electron microscope manufacturers.
The Company's Kevex X-Ray Inc. ("Kevex X-Ray") subsidiary is a manufacturer
of specialized X-ray sources used by industrial users for imaging, inspection,
analytical and thickness-gauging applications. Kevex X-Ray also supplies X-ray
sources for advanced medical diagnostic imaging equipment. The Company sells its
X-ray sources primarily to OEMs through a direct sales force in the United
States, a distributor in Japan and through both a direct sales force and
distributors in the remainder of the world.
The Company's Nicolet Imaging Systems ("NIS") division manufactures
real-time, nondestructive X-ray imaging systems for quality-control inspection.
NIS' products are used to inspect high-reliability, high-liability products (for
example, components for the telecommunications industry and those used in airbag
assembly in the automotive industry). The Company's line of X-ray inspection
products are among the most complete on the market, ranging from manual,
industrial inspection systems to fully automated, conveyorized circuit board
analysis systems for high-volume electronics manufacturing. The Company markets
its X-ray inspection systems worldwide through a network of domestic and
international sales representatives.
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Through the Company's SRT subsidiary, the Company manufactures systems for
the rework and repair of printed circuit boards that have failed quality-control
inspection. The product line includes systems that remove defective components
from the board, clean away excess solder, redispense solder to the board and
replace components. This is facilitated by proprietary software that allows for
increased automation and ease of use when incorporated into the system. The
Company sells its circuit board-repair systems through a combination of
distributors and sales representatives.
Through its ThermoMicroscopes subsidiary, the Company designs, manufactures
and sells a family of scanning probe microscopes including vacuum, ambient air
and liquid cell systems. Scanning probe microscopy is a new imaging tool that
offers three-dimensional resolution used for studying the surface properties of
materials down to the atomic level. Scanning probe microscopes can measure such
physical surface properties as magnetic fields, surface conductivity and
static-charge distribution. ThermoMicroscopes' instruments are used for
academic, semiconductor, computer storage, materials science, optics and life
sciences applications. The Company sells its scanning probe microscopes through
a direct sales force, representatives and distributors throughout the world.
The Company's NORAN subsidiary also manufactures confocal laser scanning
microscopes that create an image of a sample by rapidly scanning it with a laser
light source. Confocal microscopes provide greatly enhanced depth resolution
over conventional optical microscopes. The Company sells its confocal laser
scanning microscopes through a direct sales force and through distributors and
sales representatives.
Revenues from imaging and inspection systems represented 45%, 46% and 54% of
the Company's total revenues in 1998, 1997 and 1996, respectively. See Note 12
to the Company's Consolidated Financial Statements included elsewhere within
this Proxy Statement for financial information relating to business segments and
geographical information.
TEMPERATURE CONTROL INSTRUMENTS
Through its NESLAB subsidiary, the Company manufactures and markets
precision temperature control systems for analytical, laboratory, industrial,
research and development, laser and semiconductor applications. The laboratory
product line includes constant-temperature bath/circulators and immersion
coolers typically used for cell culture, incubations, refractometer cooling and
general research and development. The industrial product line features
self-contained cooling systems that pump chilled water through water-cooled
equipment such as lasers; analytical instrumentation such as X-ray diffraction;
and, in the semiconductor industry, etchers and ion implanters. The Company
sells its temperature control systems through a direct sales force in the United
States and Europe, and through a network of distributors and sales
representatives in the rest of the world.
Revenues from temperature control systems represented 32% and 28% of the
Company's total revenues in 1998 and 1997, respectively. See Note 12 to the
Company's Consolidated Financial Statements included elsewhere within this Proxy
Statement for financial information relating to business segments and
geographical information.
TEST AND MEASUREMENT INSTRUMENTS
The Company's Nicolet Instrument Technologies, Inc. and Gould Instrument
Systems, Inc. ("Gould") subsidiaries manufacture data-acquisition systems,
digital oscilloscopes and recording systems addressing a broad range of
applications, primarily in product development and process monitoring settings.
Markets served include automotive, power, medical research, telecommunications,
and television and video. The product family enables the analysis and display of
most common signal types such as voltage, pressure, current, strain,
acceleration and temperature. The Company markets its test and measurement
instruments in the United States and Europe through a combination of direct
salespeople, distributors and sales representatives, and in the rest of the
world through over 90 distributors and sales representatives.
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<PAGE>
Revenues from test and measurement instruments represented 23%, 26% and 46%
of the Company's total revenues in 1998, 1997 and 1996, respectively. See
Note 12 to the Company's Consolidated Financial Statements included elsewhere
within this Proxy Statement for financial information relating to business
segments and geographical information.
PROPERTIES
The Company owns approximately 119,000 square feet of office, engineering,
laboratory and manufacturing space, which includes approximately 117,000 square
feet in Middleton, Wisconsin and Valencia, California used by the Company's
Imaging and Inspection businesses and approximately 2,000 square feet in Kempen,
Cheshire, United Kingdom used by the Company's Temperature Control businesses.
The Company leases approximately 432,000 square feet of additional office,
engineering, laboratory and manufacturing space under leases expiring from 1999
through 2005. The Company's Imaging and Inspection businesses lease
approximately 151,000 square feet, principally in Sunnyvale, San Diego and
Scotts Valley, California, and Westford, Massachusetts. The Company's Test and
Measurement businesses lease approximately 110,000 square feet, principally in
Valley View, Ohio and Madison, Wisconsin. The Temperature Control businesses of
the Company lease approximately 170,000, principally in Newington, New
Hampshire. In addition, the Company leases approximately 1,000 square feet of
office space in Franklin, Massachusetts.
The Company believes that its facilities are in good condition and are
suitable and adequate for its present operations. With respect to leases
expiring in the near future, in the event the Company does not renew such
leases, the Company believes suitable alternate space is available for lease on
acceptable terms.
54
<PAGE>
SELECTED FINANCIAL INFORMATION
The selected financial information presented below as of and for the years
ended January 2, 1999, and January 3, 1998, and for the year ended December 28,
1996, has been derived from the Company's Consolidated Financial Statements,
which have been audited by Arthur Andersen LLP, independent public accountants,
as indicated in their report included elsewhere in this Proxy Statement. The
selected financial information presented below as of December 28, 1996, and as
of and for the years ended December 30, 1995, and December 31, 1994, has been
derived from the Company's Consolidated Financial Statements, which have been
audited by Arthur Andersen LLP, but have not been included or incorporated by
reference herein. This information should be read in conjunction with the
Company's Consolidated Financial Statements and related notes included elsewhere
in this Proxy Statement. The selected financial information for the six months
ended July 3, 1999, and July 4, 1998, has not been audited but, in the opinion
of the Company, includes all adjustments (consisting only of normal, recurring
adjustments) necessary to present fairly such information in accordance with
generally accepted accounting principles applied on a consistent basis. The
results of operations for the six months ended July 3, 1999, are not necessarily
indicative of results for the entire year.
<TABLE>
<CAPTION>
SIX MONTHS ENDED FISCAL YEAR
------------------- ----------------------------------------------------
JULY 3, JULY 4,
1999 1998 1998(1) 1997(2) 1996(3) 1995(4) 1994
-------- -------- -------- -------- -------- -------- --------
(IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF INCOME DATA
Revenues......................... $ 84,609 $102,125 $191,017 $198,900 $123,199 $91,714 $42,142
-------- -------- -------- -------- -------- ------- -------
Costs and Operating Expenses:
Cost of revenues............... 50,487 58,831 110,915 115,747 62,900 46,384 21,759
Selling, general, and
administrative expenses...... 23,478 27,278 53,643 53,182 36,493 28,501 12,136
Research and development
expenses..................... 7,530 8,712 16,298 17,303 12,910 9,036 4,149
Restructuring costs............ 875 -- 4,320 953 1,038 -- --
Other nonrecurring income...... (45) (339) (102) (2,210) (867) -- --
-------- -------- -------- -------- -------- ------- -------
82,325 94,482 185,074 184,975 112,474 83,921 38,044
-------- -------- -------- -------- -------- ------- -------
Operating Income................. 2,284 7,643 5,943 13,925 10,725 7,793 4,098
Interest Income.................. 364 773 1,333 692 935 820 226
Interest Expense................. (1,577) (2,376) (4,337) (4,217) (773) (707) (114)
Gain on Sale of Investment....... -- -- 713 -- -- -- --
-------- -------- -------- -------- -------- ------- -------
Income Before Provision for
Income Taxes................... 1,071 6,040 3,652 10,400 10,887 7,906 4,210
Provision for Income Taxes....... 515 2,480 1,827 4,552 4,270 3,312 1,842
-------- -------- -------- -------- -------- ------- -------
Net Income....................... $ 556 $ 3,560 $ 1,825 $ 5,848 $ 6,617 $ 4,594 $ 2,368
======== ======== ======== ======== ======== ======= =======
Earnings per Share:
Basic.......................... $ .04 $ .23 $ .12 $ .40 $ .53 $ .41 $ .25
======== ======== ======== ======== ======== ======= =======
Diluted........................ $ .04 $ .23 $ .12 $ .39 $ .53 $ .40 $ .25
======== ======== ======== ======== ======== ======= =======
Weighted Average Shares:
Basic.......................... 15,338 15,322 15,324 14,694 12,437 11,229 9,383
======== ======== ======== ======== ======== ======= =======
Diluted........................ 15,430 15,344 15,354 14,806 12,570 11,356 9,383
======== ======== ======== ======== ======== ======= =======
</TABLE>
55
<PAGE>
SELECTED FINANCIAL INFORMATION (CONTINUED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED FISCAL YEAR
------------------- ----------------------------------------------------
JULY 3, JULY 4,
1999 1998 1998(1) 1997(2) 1996(3) 1995(4) 1994
-------- -------- -------- -------- -------- -------- --------
(IN THOUSANDS EXCEPT PER SHARE AMOUNTS AND RATIOS)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA (AT END OF
PERIOD)
Working Capital.................. $ 1,188 $ 52,741 $ (2,252) $ 53,540 $ 44,683 $35,961 $27,377
Total Assets..................... 240,225 257,869 249,882 253,397 152,485 122,917 78,701
Long-term Obligations............ 7,300 57,300 7,300 67,300 22,300 7,300 7,300
Shareholders' Investment......... 129,673 132,645 130,835 128,338 89,621 82,525 53,313
OTHER DATA (UNAUDITED)
Book Value per Share............. 8.44 8.66 8.54 8.38 7.20 6.64 5.08
Cash Dividends Declared per
Share.......................... -- -- -- -- -- -- --
RATIO OF EARNINGS TO FIXED
CHARGES (UNAUDITED)(5)......... 1.46 2.94 1.67 3.02 7.11 6.39 10.82
</TABLE>
- ------------------------
(1) Reflects the October 1998 acquisition of TopoMetrix and a $5.4 million
pretax charge for restructuring and related costs, consisting of
restructuring costs of $4.3 million and an inventory write-down of $1.1
million, which is included in cost of revenues.
(2) Reflects the March 1997 acquisitions of NESLAB and PSI, the July 1997
acquisition of SRT and a $1.8 million pretax charge for restructuring and
related costs, consisting of restructuring costs of $1.0 million and an
inventory write-down of $0.8 million, which is included in cost of revenues.
Also reflects other nonrecurring income of $2.2 million relating to the sale
of a product line.
(3) Reflects the March 1996 acquisition of Kevex Instruments and Kevex X-Ray,
pretax restructuring costs of $1.0 million, and other nonrecurring income of
$0.9 million related to a settlement with the former owner of Gould in
connection with the discontinuance of a product line.
(4) Reflects the May 1995 acquisition of Gould and the net proceeds of the
Company's initial public offering and private placement of common stock.
(5) For purposes of computing the ratios of earnings to fixed charges,
"earnings" represent income from continuing operations before taxes, plus
fixed charges. "Fixed charges" for continuing operations consist of interest
on indebtedness and amortization of debt expense and one-third of rental
expense, which is deemed to be the interest component of such rental
expense.
56
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
The Company develops, manufactures, and markets precision instruments in
three segments: Imaging and Inspection, Temperature Control, and Test and
Measurement. These instruments are generally combined with proprietary
operations and analysis software to provide industrial and research customers
with integrated systems that address their specific needs. The Imaging and
Inspection segment includes X-ray microanalysis instruments; X-ray fluorescence
instruments; nondestructive X-ray inspection systems; specialty X-ray tubes; and
confocal laser scanning microscopes. The Company broadened its product offerings
to include scanning probe microscopes through the acquisitions of PSI in March
1997 and TopoMetrix in October 1998 (See Note 3 to the Company's Consolidated
Financial Statements included elsewhere in this Proxy Statement). In addition,
the Company acquired SRT in July 1997, a manufacturer of systems used for the
rework and repair of printed circuit boards (See Note 3 to the Company's
Consolidated Financial Statements included elsewhere in this Proxy Statement).
The Test and Measurement segment includes digital oscillographic recorders,
digital storage oscilloscopes ("DSOs"), and data acquisition systems. The
Company expanded into the Temperature Control segment through its March 1997
acquisition of NESLAB, which manufactures and markets precision temperature
control systems for analytical, laboratory, industrial, research and
development, laser, and semiconductor applications (See Note 3 to the Company's
Consolidated Financial Statements included elsewhere in this Proxy Statement).
The Company's growth strategy has included acquiring complementary
businesses, developing new applications for its technologies to address related
market segments, and strengthening its presence in selected geographic markets.
Because the Company competes primarily on the basis of its technology in all of
its segments, it will also need to continually improve the technology underlying
the products of any company it acquires. One of the Company's principal goals
during recent quarters has been to improve operating margins. As part of this
plan, the Company completed the divestiture of two low-margin product lines in
December 1997 and January 1998 (See Note 3 to the Company's Consolidated
Financial Statements included elsewhere in this Proxy Statement) and undertook
certain other restructuring actions during 1998 (See Note 4 to the Company's
Consolidated Financial Statements included elsewhere in this Proxy Statement).
A significant portion of the Company's total revenues, primarily in the
Imaging and Inspection and Temperature Control segments, is attributable to the
sale of products and related services to customers in the semiconductor
industry. The semiconductor industry has historically been cyclical and is
characterized by sudden and sharp changes in supply and demand. Demand for the
Company's products and services within the semiconductor industry is dependent
upon, among other things, the level of capital spending by semiconductor
companies. The semiconductor industry has been experiencing weakness in demand
for its products as a result of the economic crisis in Asia, excess
manufacturing capacity, and a slowdown in sales of high-end personal computers.
Many semiconductor manufacturers delayed construction or expansion of their
production facilities in response to the foregoing conditions. The slowdown in
semiconductor activity began to affect demand for the Company's products in the
second quarter of 1998. During the first six months of 1999, the semiconductor
industry has shown some increased activity, but not to the levels experienced
prior to this most recent slowdown. Continued fluctuation in the semiconductor
industry could have a significant adverse effect upon the demand for the
Company's products and related services, which could materially adversely affect
the Company's business and future results of operations.
The Company conducts all of its manufacturing operations in the United
States. The Company sells its products worldwide. During 1998, exports to the
Far East represented 15% of total revenues. Asia is experiencing a severe
economic crisis, which has been characterized by sharply reduced economic
activity and liquidity, highly volatile foreign currency exchange and interest
rates, and unstable stock markets. The Company's sales to Asia have been, and
are expected to continue to be, adversely affected by the unstable
57
<PAGE>
economic conditions in that region. Additionally, certain of the Company's
customers located outside of the Asian region could be adversely affected by the
unstable economic conditions in Asia.
The Company anticipates that a significant portion of its revenues in all
three segments will be from sales to customers outside the United States. The
Company's business activities outside the United States are conducted through
sales and service subsidiaries and through third party representatives and
distributors. The results of the Company's international operations are subject
to foreign currency fluctuations, and the exchange rate value of the dollar may
have a significant impact on both revenues and earnings. The Company may use
forward contracts to reduce its exposure to currency fluctuations.
RESULTS OF OPERATIONS
FIRST SIX MONTHS 1999 COMPARED WITH FIRST SIX MONTHS 1998
Total revenues decreased to $84.6 million in the first six months of 1999
from $102.1 million in the first six months of 1998. Revenues from the Imaging
and Inspection segment decreased $3.2 million to $41.9 million in 1999 from
$45.1 million in 1998, primarily due to a $4.0 million decrease in revenues at
Kevex Instruments as a result of lower demand and lower revenues due to
continued softness in the semiconductor market. The decrease in revenues at the
Imaging and Inspection segment was offset in part by an increase of
$3.9 million due to the inclusion of revenues from TopoMetrix, acquired in
October 1998. Revenues from the Temperature Control segment decreased
$10.0 million to $24.5 million in 1999 from $34.5 million in 1998, principally
due to a severe reduction in capital-equipment expenditures in the semiconductor
industry. Revenues from the Test and Measurement segment decreased $4.3 million
to $18.2 million in 1999 from $22.5 million in 1998, primarily due to a decline
in demand for its products.
The gross profit margin decreased to 40% in the first six months of 1999
from 42% in the first six months of 1998, primarily due to lower sales volume.
The decrease in the gross profit margin was offset in part by reduced spending
on labor and overhead of $3.2 million as a result of restructuring actions
commenced in 1998.
Selling, general, and administrative expenses as a percentage of revenues
increased to 28% in the first six months of 1999 from 27% in the first six
months of 1998, primarily due to decreased revenues. Selling, general, and
administrative expenses decreased 14% to $23.5 million in 1999 from
$27.3 million in 1998, primarily as a result of restructuring actions commenced
in 1998.
Research and development expenses decreased to $7.5 million in the first six
months of 1999 from $8.7 million in the first six months of 1998. The decreased
spending primarily resulted from the discontinuation of research and development
efforts on underperforming product lines, which reduced expenses by
$0.7 million, and, to a lesser extent, the completion of efforts relating to
new-product releases.
The Company recorded $0.9 million of restructuring costs in the first six
months of 1999, all of which represents cash costs that were paid in 1999 (See
Note 4 to the Company's Consolidated Financial Statements included elsewhere in
this Proxy Statement). The restructuring charges relate to actions initiated in
1998 and consist of severance costs of $0.3 million, facility-closing costs of
$0.2 million, and business relocation and related costs of $0.4 million. Of the
total charge for severance, $0.2 million was recorded by PSI and $40,000 was
recorded by Kevex, both of which are included in the Imaging and Inspection
segment. The severance charge was for terminations across all functions. The
restructuring charges for facility-closing and business relocation and related
costs were recorded by Kevex and relate to the closure of its southern
California facility. In connection with the closing of certain facilities, the
Company expects to incur approximately $0.2 million of additional costs in the
third quarter of 1999.
Interest income decreased to $0.4 million in the first six months of 1999
from $0.8 million in the first six months of 1998, principally due to a
reduction in invested balances as a result of the repayment of an aggregate
$25.0 million of promissory notes to Thermo Electron in August 1998 and March
1999. Interest
58
<PAGE>
expense, related party, decreased to $1.6 million in 1999 from $2.4 million in
1998, primarily due to the repayment of such promissory notes.
The effective tax rate was 48% in the first six months of 1999, compared
with 41% in the first six months of 1998. The effective tax rates exceeded the
statutory federal income tax rate primarily due to the impact of state income
taxes and nondeductible amortization of cost in excess of net assets of acquired
companies for certain of the Company's acquisitions. The effective tax rate
increased primarily due to the higher relative impact of nondeductible
amortization of cost in excess of net assets of acquired companies.
1998 COMPARED WITH 1997
Total revenues decreased $7.9 million to $191.0 million in 1998 from
$198.9 million in 1997. Revenues increased $17.6 million due to the inclusion of
$22.4 million of revenues for the full year from NESLAB, PSI, and SRT, which
were acquired during 1997, in addition to the inclusion of TopoMetrix, acquired
October 1998, offset by the exclusion of $4.8 million of revenues resulting from
the sale of the NIS product lines in late 1997 and early 1998. Revenues were
adversely affected by approximately $4.1 million due to the strengthening in the
value of the U.S. dollar relative to currencies in foreign countries in which
the Company operates. Revenues from the Imaging and Inspection segment decreased
$6.0 million to $85.8 million in 1998 from $91.8 million in 1997. Excluding the
impact of acquisitions of $7.3 million, dispositions of $4.8 million and the
negative effects of foreign currency translation of $3.9 million, revenues from
the Imaging and Inspection segment decreased $4.5 million, primarily due to
reduced demand for semiconductor-related products of $2.5 million, a shipment at
Kevex Instruments of $1.0 million that occurred in the first quarter of 1997,
and a downturn in overseas markets of $0.9 million. Revenues from the
Temperature Control segment increased $4.9 million to $61.2 million in 1998 from
$56.3 million in 1997, primarily due to the inclusion of $15.1 million of
revenues for the full year from NESLAB. This increase was offset in part by a
decrease of $10.2 million due to a severe reduction in capital-equipment
expenditures in the semiconductor industry. Revenues from the Test and
Measurement segment decreased $6.8 million to $44.0 million in 1998 from $50.8
million in 1997, including $0.2 million resulting from currency translation,
primarily due to decreased demand. The Company's backlog decreased
$14.4 million during 1998 to $26.0 million, primarily due to the downturn in the
semiconductor industry.
The gross profit margin was unchanged at 42% in 1998 and 1997. The Company
recorded inventory write-downs of $1.1 million and $0.8 million in 1998 and
1997, respectively, primarily for discontinuing certain underperforming
products. The write-downs in 1998 included certain recorders and plotters in the
Test and Measurement segment and excess inventories in the Imaging and
Inspection segment due to consolidation of facilities. The write-down in 1997
included X-ray inspection systems that the Imaging and Inspection segment
discontinued (See Note 4 to the Company's Consolidated Financial Statements
included elsewhere in this Proxy Statement). The inventory write-downs were
recorded in cost of revenues. The gross profit margin remained constant as
savings resulting from restructuring actions were offset by lower selling prices
at Kevex Instruments and Gould due to decreased demand.
Selling, general, and administrative expenses as a percentage of revenues
increased to 28% in 1998 from 27% in 1997, primarily due to decreased revenues.
The impact of decreased revenues was offset in part by lower employment and
spending levels at most of the Company's subsidiaries in response to the revenue
decline.
Research and development expenses decreased to $16.3 million in 1998 from
$17.3 million in 1997. Research and development expenses decreased $1.7 million
due to the completion of efforts as a result of new product releases,
$0.6 million due to the discontinuation of underperforming products, and
$0.2 million due to a decrease in professional services. These decreases were
offset in part by an increase of $1.5 million due to the inclusion of expenses
from NESLAB, PSI, and SRT for the full period in 1998.
In addition to the inventory write-downs, the Company recorded restructuring
charges of $4.3 million in 1998 and $1.0 million in 1997 (See Note 4 to the
Company's Consolidated Financial Statements included
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<PAGE>
elsewhere in this Proxy Statement). The 1998 charges consisted of severance
costs of $3.7 million and facility-closing costs of $0.6 million. The 1998
actions arose as a result of lower sales volume due to a downturn in the
semiconductor industry, an economic crisis in Asia, and lower demand and will be
completed in 1999. Of the total 1998 charge for severance of $3.7 million,
$1.2 million was recorded by the Imaging and Inspection segment's Kevex
Instruments subsidiary, $2.3 million by the Test and Measurement segment's Gould
subsidiary, and $0.2 million by the Temperature Control segment's NESLAB
subsidiary. The severance charge was for terminations across all functions. Of
the total 1998 charge for facility-closing costs of $0.6 million, $0.4 million
was for the write-off of building improvements at Kevex Instruments' southern
California facility, which closed in the fourth quarter of 1998 and was
consolidated with other facilities in northern California and Wisconsin. The
balance was principally for fixed assets at Gould's U.K. facility, which was
consolidated with another U.K. facility. The Company's 1998 and 1997 actions
generally occurred over a short period of time and, consequently, the Company
does not believe that the restructuring actions materially affected its ongoing
business. The relocation of Kevex Instruments' facility was announced in the
third quarter of 1998 and occurred in the following quarter and, as a result,
the Company believes that some disruption to operations occurred, although the
effect is not deemed material. Of the total 1998 charges of $4.3 million,
$3.8 million represents cash costs, of which $1.4 million was paid in 1998 and
$1.5 million was paid in the first six months of 1999. The Company expects that
the balance will be paid over the remainder of 1999. The 1998 restructuring
actions are expected to result in lower annual payroll costs of approximately
$10 million.
Interest income increased to $1.3 million in 1998 from $0.7 million in 1997,
due to higher average invested balances. Interest expense, related party,
primarily represents interest incurred on the $60 million aggregate amount of
promissory notes issued to Thermo Electron in 1997 in connection with
acquisitions.
During 1998, the Company sold its shares of SteriGenics International Inc.
("SteriGenics") common stock that were received in connection with the 1997 sale
of its Linac business, resulting in a gain of $0.7 million.
The effective tax rate was 50% in 1998, compared with 44% in 1997. The
effective tax rates exceeded the statutory federal income tax rate primarily due
to the impact of state income taxes and nondeductible amortization of cost in
excess of net assets of acquired companies for certain of the Company's
acquisitions. The effective tax rate increased principally due to the larger
relative impact of nondeductible amortization of cost in excess of net assets of
acquired companies.
1997 COMPARED WITH 1996
Revenues were $198.9 million in 1997, compared with $123.2 million in 1996,
an increase of 61%. Revenues increased $76.6 million due to the inclusion of
revenues from NESLAB, PSI, and SRT, which were acquired during 1997, and the
inclusion of revenues for the full year in 1997 from Kevex Instruments and Kevex
X-Ray. Excluding the impact of acquisitions and the negative effects of foreign
currency translation of $3.5 million, revenues increased 2% in 1997. Revenues
from the Imaging and Inspection segment increased $24.1 million to
$91.8 million in 1997 from $67.7 million in 1996, primarily due to the inclusion
of $20.3 million in revenues from acquisitions and higher demand for inspection
systems manufactured by NIS of $6.6 million and X-ray tubes manufactured by
Kevex X-Ray of $1.6 million. These increases were offset in part by a decrease
in revenues due to a decline in demand for confocal laser scanning microscopes
at NORAN of $2.5 million and the negative effects of foreign currency
translation of $1.4 million. Test and Measurement segment revenues decreased
$4.7 million, or 8%, to $50.8 million in 1997 from $55.5 million in 1996,
primarily due to a decline in demand and the negative effects of currency
translation of $2.1 million. The Company's Temperature Control segment was
created with the 1997 acquisition of NESLAB.
The gross profit margin declined to 42% in 1997 from 49% in 1996. The
decline in the gross profit margin is primarily attributable to the inclusion of
lower-margin revenues from NESLAB, which had a
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<PAGE>
gross profit margin of 36% in 1997, and to an eight percentage-point
deterioration in margin levels at NIS due to an inventory write-down of
$0.8 million in the third quarter of 1997 and a change in mix from higher-margin
manual systems to lower-margin automated systems. The inventory write-down
included X-ray inspection systems that the Imaging and Inspection segment
discontinued and was recorded in cost of revenues. To a lesser extent, the gross
margin was adversely impacted in 1997 by a deterioration in the gross profit
margin for the Company's test and measurement systems and at NORAN due in part
to the strengthening of the U.S. dollar.
Selling, general, and administrative expenses as a percentage of revenues
decreased to 27% in 1997 from 30% in 1996, primarily due to the inclusion of
lower selling expenses as a percentage of revenues at NESLAB, which totaled 18%,
and, to a lesser extent, lower selling, general, and administrative expenses at
Gould as a result of ongoing expense reductions, including restructuring charges
taken in 1997 that reduced employee cost levels at that subsidiary (See Note 4
to the Company's Consolidated Financial Statements included elsewhere in this
Proxy Statement). These improvements were offset in part by the inclusion of
higher selling, general, and administrative expenses as a percentage of revenues
at PSI and a higher relative expense level at NORAN primarily due to lower
revenues.
Research and development expenses increased to $17.3 million in 1997 from
$12.9 million in 1996, primarily due to the inclusion of $5.8 million of
expenses at acquired businesses, offset in part by overall reduced research and
development spending levels at the Company's existing operations.
The Company recorded restructuring charges of $1.0 million in both 1997 and
1996, primarily related to severance costs incurred by the Test and Measurement
segment's Gould subsidiary (See Note 4 to the Company's Consolidated Financial
Statements included elsewhere in this Proxy Statement). These actions consisted
of staff reductions across all functions in response to lower sales volume at
this business. The 1997 actions commenced in June 1997 and were completed in
February 1998. The 1996 actions commenced in September 1996 and were completed
by April 1997. The restructuring charges in both periods represent cash costs.
Of the 1997 charges, $0.7 million was paid in 1997 and the remainder was paid in
1998. Of the 1996 charges, $14,000 was paid in 1996 and the remainder was paid
in 1997. The 1997 and 1996 restructuring actions resulted in lower annual
payroll costs of approximately $2.0 million and $1.5 million, respectively.
Other nonrecurring income in 1997 represents the sale of the Company's Linac
business to SteriGenics for $5.0 million in cash and 109,607 shares of
SteriGenics common stock valued at $2.1 million. The Linac business, which had
revenues and operating income in 1997 of $3.7 million and $1.2 million,
respectively, is an electron beam radiation business that offers contract
sterilization services. Other nonrecurring income in 1996 represents a
settlement with the prior owner of Gould, for costs incurred by Gould in
connection with its Acqulab product line (See Note 3 to the Company's
Consolidated Financial Statements included elsewhere in this Proxy Statement).
Interest income decreased to $0.7 million in 1997 from $0.9 million in 1996
due to lower average invested cash balances as a result of cash used to
partially fund the acquisitions of the Kevex businesses, which was paid to
Thermo Instrument in August 1996, and the acquisition of PSI in March 1997.
Interest expense, related party, increased to $4.2 million in 1997 from
$0.8 million in 1996 due to borrowings from Thermo Electron to fund acquisitions
(See Note 8 to the Company's Consolidated Financial Statements included
elsewhere in this Proxy Statement).
The effective tax rate was 44% in 1997, compared with 39% in 1996. The
effective tax rates exceeded the statutory federal income tax rate primarily due
to the impact of state income taxes, nondeductible amortization of cost in
excess of net assets of acquired companies for certain of the Company's
acquisitions and, in 1997, the inability to benefit losses at certain of the
Company's foreign subsidiaries. The increase in the effective tax rate in 1997
was due to the impact of nondeductible amortization of cost in excess of net
assets of acquired companies from the acquisitions of NESLAB and PSI and
increased losses at certain of the Company's foreign subsidiaries that were not
benefited.
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LIQUIDITY AND CAPITAL RESOURCES
The Company had working capital of $1.2 million at July 3, 1999, compared
with negative working capital of $2.3 million at January 2, 1999. Included in
working capital are cash and cash equivalents of $9.7 million at July 3, 1999,
compared with $20.7 million at January 2, 1999. In addition, as of July 3, 1999,
the Company had $7.2 million invested in an advance to affiliate. Prior to the
use of a new domestic cash management arrangement between the Company and Thermo
Electron (See Note 16 to the Company's Consolidated Financial Statements
included elsewhere in this Proxy Statement), which became effective June 1,
1999, amounts invested with Thermo Electron were included in cash and cash
equivalents. Also reflected in working capital are notes payable to Thermo
Electron of $50.0 million at July 3, 1999, and $60.0 million at January 2, 1999.
In July 1999, the Company repaid its $5.0 million promissory note owed to Thermo
Electron, and Thermo Electron extended the maturity of the Company's
$45.0 million promissory note to December 1999. The promissory note bears
interest at the 30-day Dealer Commercial Paper Rate plus 150 basis points, set
at the beginning of each month.
During the first six months of 1999, the Company's operating activities
provided $5.9 million of cash. A decrease in accounts receivable, primarily due
to lower revenues, provided $3.0 million of cash. An increase in accounts
payable, due to the timing of payments, provided $1.5 million of cash. These
increases in cash were reduced in part by the use of $3.1 million of cash to
fund a decrease in the other current liabilities, primarily for cash payments
relating to severance and facility-closure costs (See Note 4 to the Company's
Consolidated Financial Statements included elsewhere in the Proxy Statement). As
of July 3, 1999, the Company had $0.9 million of accrued restructuring costs,
all of which it expects to pay in the remainder of 1999.
During the first six months of 1999, the Company's primary investing
activities, excluding advance to affiliate activity, included the purchase of
property, plant, and equipment. The Company used $2.2 million of cash for
purchases of property, plant and equipment and received a $0.6 million refund of
a portion of the acquisition purchase price for PSI, which resulted from the
final determination of the post-closing adjustment. During the remainder of
1999, the Company plans to expend approximately $1.8 million for the purchases
of property, plant and equipment.
During the first six months of 1999, the Company's financing activities used
$6.8 million of cash. The Company repaid $10.0 million of borrowings to Thermo
Electron in March 1999. In addition, an increase in short-term borrowings
provided $2.8 million of cash.
Net cash provided by operating activities was $21.1 million in 1998. A
decrease in accounts receivable provided $3.6 million of cash and a decrease in
accounts payable used $2.0 million of cash, primarily due to the decline in
revenues and corresponding decline in purchases as result of the downturn in the
semiconductor industry. A decrease in inventories, primarily at the Test and
Measurement segment, provided $3.3 million due to lower sales volume. Other
current liabilities provided $3.8 million, primarily due to restructuring costs
that were not paid by the end of 1998. Increases in amounts due to affiliates
provided $3.0 million as a result of the timing of payments at year-end.
The Company's investing activities used $4.7 million of cash in 1998. The
Company used $7.9 million, net of cash acquired, for the acquisition of
TopoMetrix and received $0.8 million of cash from the sale of a product line
(See Note 3 to the Company's Consolidated Financial Statements included
elsewhere in this Proxy Statement) and $2.1 million from the sale of property,
plant, and equipment, primarily from the sale of a building by Gould. During
1998, the Company expended $2.2 million for the purchase of property, plant, and
equipment. The Company sold its shares of SteriGenics common stock for
$2.8 million during 1998 (See Note 3 to the Company's Consolidated Financial
Statements included elsewhere in this Proxy Statement).
During 1998, the Company's financing activities consisted primarily of the
repayment of $15.0 million of long-term obligations to Thermo Electron.
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<PAGE>
The Company generally expects to have positive cash flow from its existing
operations. Although the Company does not presently intend to actively seek to
acquire additional businesses in the near future, it may acquire one or more
complementary businesses if they are presented to the Company on terms the
Company believes to be attractive. Such acquisitions may require significant
amounts of cash. The Company expects that it would seek to finance any such
acquisitions through a combination of internal funds and/or short-term
borrowings from Thermo Instrument or Thermo Electron, although it has no
agreement with these companies to ensure that any additional funds will be
available on acceptable terms or at all. Thermo Electron has indicated that it
will seek repayment from the Company of its $45.0 million promissory note, the
maturity of which was extended by Thermo Electron to December 1999, only to the
extent the Company's cash flow permits such repayment. Accordingly, the Company
believes that its existing resources and cash provided by operations are
sufficient to meet the capital requirements of its existing businesses for the
foreseeable future, including at least the next 24 months.
MARKET RISK
The Company's exposure to market risk from changes in foreign currency
exchange rates and interest rates, which could affect its future results of
operations and financial condition, has not changed materially from its exposure
at year-end 1998. The Company manages its exposure to these risks through its
regular operating and financing activities.
FOREIGN CURRENCY EXCHANGE RATES
The Company generally views its investment in foreign subsidiaries with a
functional currency other than the Company's reporting currency as long-term.
The Company's investment in foreign subsidiaries is sensitive to fluctuations in
foreign currency exchange rates. The functional currencies of the Company's
foreign subsidiaries are principally denominated in British pounds sterling,
Japanese yen, French francs, Dutch guilders, and German marks. The effect of a
change in foreign exchange rates on the Company's net investment in foreign
subsidiaries is recorded in the "Accumulated Other Comprehensive Items"
component of shareholders' investment. A 10% decrease in year-end 1998
functional currencies, relative to the U.S. dollar, would result in an $875,000
reduction of shareholders' investment.
INTEREST RATES
The Company's cash and cash equivalents and certain long-term obligations
are sensitive to changes in interest rates. Interest rate changes would result
in a change in interest income and expense due to the difference between the
current interest rates on these financial instruments and the variable rate that
these financial instruments may adjust to in the future.
YEAR 2000
The following information constitutes a "Year 2000 Readiness Disclosure"
under the Year 2000 Information and Readiness Disclosure Act. The Company
continues to assess the potential impact of the year 2000 date recognition issue
on the Company's internal business systems, products and operations. The
Company's year 2000 initiatives include (i) testing and upgrading significant
information technology systems and facilities; (ii) testing and developing
upgrades, if necessary, for the Company's current products and certain
discontinued products; (iii) assessing the Year 2000 readiness of its key
suppliers and vendors to determine their year 2000 compliance status; and (iv)
developing a contingency plan.
THE COMPANY'S STATE OF READINESS
The Company has implemented a compliance program to ensure that its critical
information technology systems and non-information technology systems will be
ready for the year 2000. In the first phase of the program, the Company tested
and evaluated critical information technology systems and non-
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<PAGE>
information technology systems for year 2000 compliance, which efforts included
testing and evaluating its significant computer systems, software applications
and related equipment for year 2000 compliance, and testing the year 2000
readiness of its manufacturing, utility and telecommunications systems at its
critical facilities. In phase two of its program, any material noncompliant
information technology systems or non-information technology systems that were
identified during phase one were prioritized and remediated. In many cases,
upgrades or replacements were made in the ordinary course of business, without
accelerating previously scheduled upgrades or replacements. The Company believes
that all of its material information technology systems and critical
non-information technology systems are currently year 2000 compliant.
The Company has also implemented a compliance program to test and evaluate
the year 2000 readiness of the material products that it currently manufactures
and sells. The Company believes that all of such material products are year 2000
compliant. However, as many of the Company's products are complex, interact with
or incorporate third party products, and operate on computer systems that are
not under the Company's control, there can be no assurance that the Company has
identified all of the year 2000 problems with its current products. The Company
believes that certain of its older products, which it no longer manufactures or
sells, may not be year 2000 compliant. The Company is continuing to test and
evaluate such products. The Company is focusing its efforts on products that are
still under warranty and/ or are early in their expected life. The Company is
offering upgrades and/or identifying potential solutions where reasonably
practicable.
The Company has also identified and assessed the year 2000 readiness of key
suppliers and vendors that are believed to be significant to the Company's
business operations. As part of this effort, the Company developed and
distributed questionnaires relating to year 2000 compliance to its significant
suppliers and vendors. The Company followed up with its significant suppliers
and vendors that did not respond to the Company's questionnaires. The Company
has completed the majority of its assessment of third party risk.
CONTINGENCY PLAN
The Company has developed a contingency plan that will allow its primary
business operations to continue despite disruptions due to year 2000 problems.
This plan includes identifying and securing other suppliers, increasing
inventories and modifying production facilities and schedules. As the Company
continues to evaluate the year 2000 readiness of its business systems and
facilities, products, and significant suppliers and vendors, it will modify and
adjust its contingency plan as may be required.
ESTIMATED COSTS TO ADDRESS THE COMPANY'S YEAR 2000 ISSUES
To date, costs incurred in connection with the year 2000 issue have not been
material. The Company does not expect total year 2000 remediation costs to be
material, but there can be no assurance that the Company will not encounter
unexpected costs or delays in achieving year 2000 compliance. Year 2000 costs
are, and will continue to be, funded from working capital. All internal costs
and related external costs, other than capital additions, related to year 2000
remediation have been and will continue to be expensed as incurred. The Company
does not track the internal costs incurred for its year 2000 compliance project.
Such costs are principally the related payroll costs for its information systems
group.
REASONABLY LIKELY WORST CASE SCENARIO
At this point in time, the Company is not able to determine the most
reasonably likely worst case scenario to result from the year 2000 issue. One
possible worst case scenario would be that certain of the Company's material
suppliers or vendors experience business disruptions due to the year 2000 issue
and are unable to provide materials and services to the Company on time. The
Company's operations could be delayed or temporarily shut down, and it could be
unable to meet its obligations to customers in a timely fashion. The Company's
business, operations, and financial condition could be adversely affected in
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<PAGE>
amounts that cannot be reasonably estimated at this time. If the Company
believes that any of its key suppliers or vendors may not be year 2000
compliant, it will seek to identify and secure other suppliers or vendors as
part of its contingency plan.
RISKS OF THE COMPANY'S YEAR 2000 ISSUES
While the Company is attempting to minimize any negative consequences
arising from the year 2000 issue, there can be no assurance that year 2000
problems will not have a material adverse impact on the Company's business,
operations, or financial condition. Despite its efforts to ensure that its
material current products are year 2000 compliant, the Company may see an
increase in warranty and other claims, especially those related to Company
products that incorporate, or operate using, third party software or hardware.
In addition, certain of the Company's older products, which it no longer
manufactures or sells, may not be year 2000 compliant, which may expose the
Company to claims. If any of the Company's material suppliers or vendors
experience business disruptions due to year 2000 issues, the Company might also
be materially adversely affected. There is expected to be a significant amount
of litigation relating to the year 2000 issue and there can be no assurance that
the Company will not incur material costs in defending or bringing lawsuits. In
addition, if any year 2000 issues are identified, there can be no assurance that
the Company will be able to retain qualified personnel to remedy such issues.
Any unexpected costs or delays arising from the year 2000 issue could have a
significant adverse impact on the Company's business, operations and financial
condition in amounts that cannot be reasonably estimated at this time.
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CERTAIN PROJECTED FINANCIAL DATA
The Company does not, as a matter of course, make public forecasts or
projections as to future sales, earnings or other income statement data, cash
flows or balance sheet and financial position information. However, in order to
aid the evaluation of the Company by the Special Committee and Tucker Anthony,
and Tucker Anthony's assessment of the fairness, from a financial point of view,
of the consideration of $16.00 per share in cash payable to the Minority
Stockholders pursuant to the Merger Agreement, the Company furnished the Special
Committee and Tucker Anthony with certain projections (the "Projections")
prepared by the Company's management. The following summary of the Projections
is included in this Proxy Statement solely because the Projections were made
available to such parties. Subsequently, just prior to the printing of this
Proxy Statement, the Company's management updated the Projections (the "Updated
Projections") to reflect (i) actual results for the entire 1998 fiscal year and
the first two fiscal quarters of 1999, and (ii) certain changes in the
assumptions underlying the Projections that occurred since the preparation of
the original Projections in November 1998. The Updated Projections were not
provided to the Special Committee or Tucker Anthony, as they were prepared by
the Company's management after the Special Committee and Tucker Anthony had made
their respective fairness assessments. As indicated elsewhere in this Proxy
Statement, Tucker Anthony used the Projections in its analysis of the fairness,
from a financial point of view, of the Cash Merger Consideration to the Minority
Stockholders. The summary of the Updated Projections that follows is included in
this Proxy Statement solely to update the Projections and to provide
stockholders with management's current assessment of the Company's anticipated
financial results.
The Projections and the Updated Projections do not reflect any of the
effects of the Merger or other changes that may in the future be deemed
appropriate concerning the Company and its assets, business, operations,
properties, policies, corporate structure, capitalization and management in
light of the circumstances then existing. The Company believes that the
assumptions upon which the Projections and the Updated Projections were based
were reasonable at the time the Projections and the Updated Projections were
prepared, given the information known by management at such times.
Neither the Projections nor the Updated Projections were prepared with a
view toward public disclosure or compliance with published guidelines of the
Commission or the American Institute of Certified Public Accountants regarding
forward-looking information or generally accepted accounting principles. Neither
the Company's independent auditors, nor any other independent accountants, have
compiled, examined or performed any procedures with respect to the prospective
financial information contained in the Projections or the Updated Projections,
nor have they expressed any opinion or given any form of assurance on such
information or its achievability, and assume no responsibility for, and disclaim
any association with, such prospective financial information. Furthermore, the
Projections and the Updated Projections necessarily make numerous assumptions,
some (but not all) of which are set forth below and many of which are beyond the
control of the Company and may prove not to have been, or may no longer be,
accurate. Additionally, this information, except as otherwise indicated, does
not reflect revised prospects for the Company's businesses, changes in general
business and economic conditions, or any other transaction or event that has
occurred or that may occur and that was not anticipated at the time such
information was prepared. Accordingly, such information is not necessarily
indicative of current values or future performance, which may be significantly
more favorable or less favorable than as set forth below, and should not be
regarded as a representation that they will be achieved.
THE PROJECTIONS AND THE UPDATED PROJECTIONS ARE NOT GUARANTEES OF
PERFORMANCE. THEY INVOLVE RISKS, UNCERTAINTIES AND ASSUMPTIONS. THE FUTURE
RESULTS AND STOCKHOLDER VALUE OF THE COMPANY MAY MATERIALLY DIFFER FROM THOSE
EXPRESSED IN THE PROJECTIONS AND THE UPDATED PROJECTIONS. MANY OF THE FACTORS
THAT WILL DETERMINE THESE RESULTS AND VALUES ARE BEYOND THE COMPANY'S ABILITY TO
CONTROL OR PREDICT. STOCKHOLDERS ARE CAUTIONED NOT TO PLACE UNDUE RELIANCE ON
THE PROJECTIONS OR THE UPDATED PROJECTIONS. THERE CAN BE NO ASSURANCE THAT THE
PROJECTIONS OR THE UPDATED PROJECTIONS WILL BE REALIZED OR THAT THE COMPANY'S
FUTURE FINANCIAL RESULTS WILL NOT MATERIALLY VARY FROM THE PROJECTIONS OR THE
UPDATED PROJECTIONS.
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The Projections included below have been prepared by the Company based upon
management's estimates of the total market for its products and the Company's
own performance through 2003, as well as cost reductions (reflected in Selling,
general and administrative expenses) related to restructuring actions in 1998
and 1999, including the closure of certain facilities and a reduction in the
number of employees, as well as other estimated expense reductions. The
Projections forecast a decline in revenues in 1999 to approximately $188.1
million and growth in revenues thereafter to approximately $285.1 million in
2003, a compound annual growth rate from 1999 to 2003 of approximately 11.0%.
The Projections also assume an improvement in the Company's operating margin
from an actual operating margin of 5.4% in 1998 to 10.6% in 1999, 14.0% in 2000,
15.2% in 2001, 16.3% in 2002 and 17.4% in 2003. In addition, the Projections
assume (i) market conditions remaining constant based on past trends, (ii) no
significant impact on currency exchange rates, (iii) no significant acquisitions
and (iv) the competitive market position of the Company remaining constant
vis-a-vis its competitors. The Projections are necessarily limited by such
assumptions, as market conditions, exchange rates and market share do not remain
constant for the Company or its competitors in the industries in which the
Company competes. The projected results for fiscal 1999 set forth in the
Projections were based upon actual results through September 1998 and management
forecasts for the remainder of fiscal 1998 and beyond.
PROJECTIONS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FISCAL YEAR
----------------------------------------------------
1999(P) 2000(P) 2001(P) 2002(P) 2003(P)
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
REVENUES.................................. $188,102 $209,659 $229,437 $251,819 $285,080
COSTS AND OPERATING EXPENSES
Cost of revenues........................ 102,135 111,966 121,630 132,314 149,500
Selling, general and administrative
expenses.............................. 49,196 51,473 55,053 57,266 64,996
Research and development expenses....... 16,892 16,898 17,992 19,200 21,098
Restructuring costs..................... 1,055 -- -- -- --
-------- -------- -------- -------- --------
169,278 180,337 194,675 208,780 235,594
-------- -------- -------- -------- --------
Operating Income.......................... 18,824 29,322 34,762 43,039 49,486
Interest Income........................... 500 482 452 452 452
Interest Expense.......................... (4,100) (4,100) (4,100) (4,100) (4,100)
-------- -------- -------- -------- --------
Income Before Provision for Income
Taxes................................... 15,224 25,704 31,114 39,391 45,838
Provision for Income Taxes................ 4,872 9,145 11,364 13,931 17,400
-------- -------- -------- -------- --------
Net Income................................ $ 10,352 $ 16,559 $ 19,750 $ 25,460 $ 28,438
======== ======== ======== ======== ========
</TABLE>
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PROJECTIONS (CONTINUED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
FISCAL YEAR
----------------------------------------------------
1999(P) 2000(P) 2001(P) 2002(P) 2003(P)
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
SELECTED BALANCE SHEET DATA
Accounts Receivable, Net.................. $ 37,441 $ 37,251 $ 39,376 $ 42,741 $ 47,253
Inventories............................... 30,572 29,113 30,837 32,638 35,318
Prepaid Income Taxes and Other Current
Assets.................................. 9,015 8,864 8,719 8,755 8,793
-------- -------- -------- -------- --------
Total Current Assets Excluding Cash and
Investments............................. 77,028 75,228 78,932 84,134 91,364
Property, Plant, and Equipment:
Balance, beginning of year.............. 16,614 8,103 7,277 6,796 6,417
Additions............................... 4,576 3,310 3,349 3,441 3,562
Depreciation expense.................... (9,196) (4,136) (3,830) (3,820) (3,937)
Sales................................... (3,891) -- -- -- --
-------- -------- -------- -------- --------
Balance, end of year.................... 8,103 7,277 6,796 6,417 6,042
Cost in Excess of Net Assets of Acquired
Companies............................... 106,243 102,309 99,028 95,747 92,466
</TABLE>
The Updated Projections included below were prepared shortly prior to the
date of this Proxy Statement and are based upon management's estimates of the
total market for its products and the Company's own performance through 2003, as
well as cost reductions (reflected in Selling, general and administrative
expenses) related to restructuring actions in 1998 and 1999, including the
closure of certain facilities and a reduction in the number of employees, as
well as other estimated expense reductions. The Updated Projections forecast a
decline in revenues in 1999 to approximately $183.4 million and growth in
revenues thereafter to approximately $272.1 million in 2003, a compound annual
growth rate from 1999 to 2003 of approximately 10.4%. The Updated Projections
also assume an improvement in the Company's operating margin from an actual
operating margin of 5.4% in 1998 to 6.4% in 1999, 12.9% in 2000, 14.2% in 2001,
15.5% in 2002, and 17.0% in 2003. In addition, the Updated Projections assume no
significant impact on currency exchange rates and no significant acquisitions,
as well as certain other assumptions described below.
The Updated Projections reflect downward adjustments in the Company's
revenues and operating performance since the time that the Projections were
originally prepared. These downward adjustments are the result of (i) the
availability of actual results of operations for the entire 1998 fiscal year and
the first two fiscal quarters of 1999, all such actual results of operations
being lower than originally forecast by the Company's management,
(ii) management's recognition of pressure on the average selling prices of
certain of its products due to greater than anticipated competition in certain
of the industries in which the Company competes, which recognition contributed
to lower revenue forecasts, (iii) management's decisions to concentrate on
certain product lines in an effort to improve profitability over the long term,
which decreased revenue forecasts in the short term, and (iv) management's
acknowledgment that the semiconductor industry has not shown increased activity
to the levels originally anticipated by management, which also decreased the
Company's revenue forecasts. Additionally, the Company revised its anticipated
tax rate in the Updated Projections, due to a revised estimate of the projected
mix of income in various tax jurisdictions. The Updated Projections are
necessarily limited by the aforementioned assumptions, as market conditions,
exchange rates and market share do not remain constant and will continue to
fluctuate unexpectedly in the industries in which the Company competes.
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UPDATED PROJECTIONS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FISCAL YEAR
----------------------------------------------------
1999 (P) 2000 (P) 2001 (P) 2002 (P) 2003 (P)
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
REVENUES.................................. $183,420 $199,141 $217,551 $239,125 $272,053
COSTS AND OPERATING EXPENSES
Cost of revenues........................ 107,552 107,230 116,263 126,723 143,707
Selling, general and administrative
expenses.............................. 47,832 49,881 52,701 56,142 61,262
Research and development expenses....... 15,389 16,432 17,729 19,101 20,877
Restructuring costs..................... 873 -- -- -- --
-------- -------- -------- -------- --------
171,646 173,543 186,693 201,966 225,846
-------- -------- -------- -------- --------
Operating Income.......................... 11,774 25,598 30,858 37,159 46,207
Interest Income........................... 677 523 503 488 488
Interest Expense.......................... (3,428) (3,700) (3,700) (3,700) (3,700)
-------- -------- -------- -------- --------
Income Before Provision for Income
Taxes................................... 9,023 22,421 27,661 33,947 42,995
Provision for Income Taxes................ 4,331 8,968 11,064 13,579 17,198
-------- -------- -------- -------- --------
Net Income................................ $ 4,692 $ 13,453 $ 16,597 $ 20,368 $ 25,797
======== ======== ======== ======== ========
SELECTED BALANCE SHEET DATA
Accounts Receivable, Net.................. $ 37,570 $ 36,238 $ 38,189 $ 41,333 $ 45,601
Inventories............................... 30,215 27,515 28,456 29,771 31,942
Prepaid Income Taxes and Other Current
Assets.................................. 15,001 15,203 15,241 15,285 15,332
-------- -------- -------- -------- --------
Total Current Assets Excluding Cash and
Investments............................. 82,786 78,956 81,886 86,389 92,875
Property, Plant, and Equipment:
Balance, beginning of year.............. 16,991 17,431 17,325 17,293 17,308
Additions............................... 4,312 3,320 3,484 3,601 3,722
Depreciation expense.................... (3,872) (3,426) (3,516) (3,586) (3,818)
Sales................................... -- -- -- -- --
-------- -------- -------- -------- --------
Balance, end of year.................... 17,431 17,325 17,293 17,308 17,212
Cost in Excess of Net Assets of Acquired
Companies............................... 114,899 111,601 108,303 105,005 101,707
</TABLE>
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RISK FACTORS
The Company wishes to caution readers that the following important factors,
among others, in some cases have affected, and in the future could affect, the
Company's actual results and could cause its actual results in the remainder of
fiscal 1999 and beyond to differ materially from those expressed in any forward-
looking statements made by, or on behalf of, the Company.
DEPENDENCE ON SEMICONDUCTOR INDUSTRY; INDUSTRY VOLATILITY. A significant
portion of the Company's total revenues, primarily in its Imaging and Inspection
and Temperature Control businesses, is attributable to the sale of products and
related services to customers in the semiconductor industry. The semiconductor
industry has historically been cyclical and is characterized by sudden and sharp
changes in supply and demand. Demand for the Company's products and services
within the semiconductor industry is dependent upon, among other things, the
level of capital spending by semiconductor companies. The semiconductor industry
has been experiencing weakness in demand for its products as a result of the
economic crisis in Asia, excess manufacturing capacity and slowdowns in sales of
high-end personal computers. Many semiconductor manufacturers delayed
construction or expansion of their production facilities in response to the
foregoing conditions. The slowdown in semiconductor activity began to affect
demand for the Company's products in the second quarter of 1998. During the
first six months of 1999, the semiconductor industry has shown some increased
activity, but not to the levels experienced prior to this most recent slowdown.
Continued fluctuation in the semiconductor industry could have a significant
adverse effect upon the demand for the Company's products and related services,
which would materially adversely affect the Company's business and future
results of operations.
POSSIBLE ADVERSE IMPACT OF SIGNIFICANT INTERNATIONAL OPERATIONS. The
Company expects that international sales will continue to represent a
significant portion of its revenues. In 1998, international sales accounted for
approximately half of the Company's total revenues. These sales carry a number
of inherent risks, including risks associated with currency exchange, tariffs
and other potential trade barriers, potentially reduced protection for
intellectual property, the impact of recessionary environments in economies
outside the United States, and generally longer receivable collection patterns.
In addition, exports to the Far East represented 15% of total revenues in 1998.
Exports to Japan represented 7% of total revenues and exports to Taiwan, South
Korea and Singapore, collectively, represented 3% of total revenues. Asia is
experiencing a severe economic crisis, which has been characterized by sharply
reduced economic activity and liquidity, highly volatile
foreign-currency-exchange and interest rates and unstable stock markets. The
Company's sales to Asia have been, and are expected to continue to be, adversely
affected by the unstable economic conditions in that region. Additionally,
certain of the Company's customers located outside of the Asian region could be
adversely affected by the unstable economic conditions in Asia.
UNCERTAINTY OF GROWTH. Certain of the markets in which the Company competes
have been flat or declining over the past several years. The Company has
identified a number of strategies it believes will allow it to grow its
business, including, acquiring complementary businesses, developing new
applications for its technologies and strengthening its presence in selected
geographic markets. No assurance can be given that the Company will be able to
successfully implement these strategies, or that these strategies will result in
growth of the Company's business.
POTENTIAL INCREASED COMPETITION. The Company predominantly sells its
products in the high-performance segment of the markets in which it competes.
The products in this segment are generally characterized by superior engineering
and performance and compete more on product specifications than on price. The
other segments of these markets are dominated by companies with substantially
greater financial resources than those of the Company. If these larger companies
enter the high-performance segment of the market, no assurance can be given that
the Company will be able to successfully compete against them.
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<PAGE>
NEED TO RESPOND TO TECHNOLOGICAL CHANGE. Many of the Company's products are
marketed primarily based on their technologies. In order to be successful, the
Company believes that it will be important to continually improve the technology
underlying its products. No assurance can be given that the Company will be able
to do so or that a competitor of the Company will not develop technology or
products that will render the Company's competing products noncompetitive or
obsolete.
RISKS ASSOCIATED WITH ACQUISITION STRATEGY. The Company's strategy includes
the acquisition of underperforming businesses and technologies that complement
or augment the Company's existing product lines. Promising acquisitions are
difficult to identify and complete for a number of reasons, including
competition among prospective buyers and the need for regulatory approvals,
including antitrust approvals. Acquisitions completed by the Company may be made
at substantial premiums over the fair value of the net assets of the acquired
companies. There can be no assurance that the Company will be able to complete
future acquisitions or that the Company will be able to successfully integrate
any acquired businesses into its existing businesses or make such businesses
profitable.
RISKS ASSOCIATED WITH PROTECTION, DEFENSE AND USE OF INTELLECTUAL
PROPERTY. The Company holds many patents relating to various aspects of its
products, and believes that proprietary technical know-how is critical to many
of its products. Proprietary rights relating to the Company's products are
protected from unauthorized use by third parties only to the extent that they
are covered by valid and enforceable patents or are maintained in confidence as
trade secrets. There can be no assurance that patents will issue from any
pending or future patent applications owned by or licensed to the Company or
that the claims allowed under any issued patents will be sufficiently broad to
protect the Company's technology and, in the absence of patent protection, the
Company may be vulnerable to competitors who attempt to copy the Company's
products or gain access to its trade secrets and know-how. Proceedings initiated
by the Company to protect its proprietary rights could result in substantial
costs to the Company. There can be no assurance that competitors of the Company
will not initiate litigation to challenge the validity of the Company's patents,
or that they will not use their resources to design comparable products that do
not infringe the Company's patents. There may also be pending or issued patents
held by parties not affiliated with the Company that relate to the Company's
products or technologies. The Company has received correspondence alleging that
certain of its products infringe patents owned by third parties, though no
lawsuits have been filed. The Company may need to acquire licenses to, or
contest the validity of, these or any other such patents. There can be no
assurance that any license required under any such patent would be made
available on acceptable terms or that the Company would prevail in any such
contest. In addition, if any such competitor were successful in enforcing such
patents, the Company could be subject to damages and enjoined from manufacturing
and selling any related products. The Company could incur substantial costs in
defending itself in suits brought against it or in suits in which the Company
may assert its patent rights against others. If the outcome of any such
litigation is unfavorable to the Company, the Company's business and results of
operations could be materially adversely affected. Further, the laws of some
jurisdictions do not protect the Company's proprietary rights to the same extent
as the laws of the United States and there can be no assurance that the
available protections will be adequate. In addition, the Company relies on trade
secrets and proprietary know-how that it seeks to protect, in part, by
confidentiality agreements with its collaborators, employees and consultants.
There can be no assurance that these agreements will not be breached, that the
Company would have adequate remedies for any breach or that the Company's trade
secrets will not otherwise become known or be independently developed by
competitors.
RISKS ASSOCIATED WITH CASH MANAGEMENT ARRANGEMENT WITH THERMO ELECTRON. The
Company participates in a cash management arrangement with Thermo Electron.
Under this cash management arrangement, the Company lends its excess cash to
Thermo Electron on an unsecured basis. The Company has the contractual right to
withdraw its funds invested in the cash management arrangement upon 30 days'
prior notice. Thermo Electron is contractually required to maintain cash, cash
equivalents and/or immediately available bank lines of credit equal to at least
50% of all funds invested under the cash management
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arrangement by all Thermo Electron subsidiaries other than wholly owned
subsidiaries. The funds are held on an unsecured basis and therefore are subject
to the credit risk of Thermo Electron. The Company's ability to receive its cash
upon notice of withdrawal could be adversely affected if participants in the
cash management arrangement demand withdrawal of their funds in an aggregate
amount in excess of the 50% reserve required to be maintained by Thermo
Electron. In the event of a bankruptcy of Thermo Electron, the Company would be
treated as an unsecured creditor and its right to receive funds from the
bankruptcy estate would be subordinated to secured creditors and would be
treated on a PARI PASSU basis with all other unsecured creditors. Further, all
cash withdrawn by the Company from the cash management arrangement within one
year before the bankruptcy would be subject to rescission. The inability of
Thermo Electron to return the Company's cash on a timely basis or at all could
have a material adverse effect on the Company's results of operations and
financial position.
POTENTIAL IMPACT OF YEAR 2000 ON PROCESSING OF DATE-SENSITIVE
INFORMATION. The Company continues to assess the potential impact of the year
2000 on the processing of date-sensitive information by the Company's
computerized information technology and non-information technology systems and
on products sold as well as products purchased by the Company. See "MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS--Year
2000."
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<PAGE>
MANAGEMENT
The current directors and executive officers of the Company are as follows:
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---- -------- -----------------------------------------------------
<S> <C> <C>
Barry S. Howe.......................... 43 President, Chief Executive Officer and Director
Theo Melas-Kyriazi..................... 40 Chief Financial Officer and Chairman of the Board
Paul F. Kelleher....................... 57 Chief Accounting Officer
Richard S. Melanson.................... 46 Senior Vice President
Christopher J. Barron.................. 51 Vice President
Ronald W. Lindell...................... 48 Vice President
Joseph A. Baute........................ 71 Director
David J. Beaubien...................... 64 Director
Robert E. Finnigan..................... 71 Director
Elias P. Gyftopoulos................... 71 Director
Earl R. Lewis.......................... 55 Director
</TABLE>
All of the Company's directors are elected annually by the stockholders and
hold office until their respective successors are duly elected and qualified.
Executive officers are elected annually by the Board of Directors and serve at
its discretion.
Barry S. Howe has been the president, chief executive officer and a director
of the Company since March 1998. Mr. Howe has been a vice president of Thermo
Instrument since 1994. In March 1999, Mr. Howe was also named interim president
of Thermo Optek Corporation, a majority-owned subsidiary of Thermo Instrument
and a manufacturer of analytical instruments that measure energy and light for
purposes of materials analysis, characterization and preparation. He was chief
executive officer, president and a director of Thermo BioAnalysis Corporation, a
majority-owned subsidiary of Thermo Instrument that manufactures products for
biochemical research, drug discovery and clinical laboratories, from
February 1995 to March 1998. From September 1989 to December 1995, he served as
the president of Thermo Separation Products Inc. and its predecessor, a
manufacturer of chromatography instruments and a subsidiary of ThermoQuest
Corporation, which in turn is a majority-owned subsidiary of Thermo Instrument.
Mr. Howe is also a director of Thermo Optek Corporation.
Theo Melas-Kyriazi has been a director of the Company since its inception in
August 1994, chairman of the board since March 1998, and chief financial officer
since January 1999. Mr. Melas-Kyriazi has also been vice president, corporate
strategy of Thermo Electron since March 1998 and chief financial officer since
January 1999, and chief financial officer of Thermo Instrument since
January 1999. Prior to his appointment as a vice president at Thermo Electron,
Mr. Melas-Kyriazi served as the Company's president and chief executive officer
from its inception until March 1998. Mr. Melas-Kyriazi was treasurer of Thermo
Instrument and Thermo Electron from 1988 to August 1994. Mr. Melas-Kyriazi is
also a director of ThermoRetec Corporation, an affiliate of Thermo Electron.
Paul F. Kelleher has been the chief accounting officer of the Company since
its inception in August 1994. He has been senior vice president, finance and
administration, of Thermo Electron since June 1997, and served as its vice
president, finance from 1987 until 1997. Mr. Kelleher served as Thermo
Electron's controller from 1982 until January 1996. He is a director of
ThermoLase Corporation, an affiliate of Thermo Electron. Mr. Kelleher also
serves as the chief accounting officer of Thermo Instrument.
Richard S. Melanson joined the Company in October 1997 and was named senior
vice president in December 1997. Mr. Melanson also served as president of NESLAB
from November 1997 to January 1999. From July 1996 to September 1997,
Mr. Melanson was vice president and general manager of Philips Electroscan
Corporation, a supplier of scanning and transmission electron microscopes,
semiconductor defect review tools and focused ion beam systems. Prior to that
time, Mr. Melanson held a variety
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of positions at Electroscan Corporation, a venture capital financed high
technology start-up, including president and chief executive officer, executive
vice president and chief operating officer, and vice president of manufacturing,
since 1986.
Christopher J. Barron has been a vice president of the Company since its
inception in August 1994 and president of Nicolet Instrument Technologies Inc.
since August 1993. Mr. Barron held various positions within Nicolet Instrument
Corporation from May 1988 to August 1993.
Ronald W. Lindell has been a vice president of the Company since its
inception in August 1994 and president of NIS since January 1994. Mr. Lindell
was a founder of Imaging Systems International, Inc. and its president from
November 1992 to January 1994 when it was acquired by Thermo Instrument. From
November 1989 to March 1992, he was senior vice president and general manager of
the Industrial Products Division of IRT Corporation.
Joseph A. Baute has been a director of the Company since December 1998.
Mr. Baute has been a consultant to Markem Corporation, a manufacturer of marking
and printing machinery, specialty inks and printing elements since 1993.
Mr. Baute was the chairman and chief executive officer of Markem Corporation
from 1977 and 1979, respectively, until his retirement in 1993. He is also a
director of Houghton-Mifflin Company, INSO Corporation and Metrika Systems
Corporation, a majority-owned subsidiary of Thermo Instrument.
David J. Beaubien has been a director of the Company since December 1998.
Since 1990, Mr. Beaubien has been the chairman of Yankee Environmental
Systems Inc., a manufacturer of solar radiation monitoring instruments. From
1967 until his retirement in 1991, Mr. Beaubien was a senior vice president of
EG&G Inc., a manufacturer of scientific instruments and manager of US government
facilities. He served as director of the Kidder Peabody Family of Mutual Funds
from 1983 to 1995 and of Oriel Instruments Corporation from 1990 to 1996.
Mr. Beaubien is also a director of IEC Electronics, Inc., Paine Webber Pace
Mutual Funds and ONIX Systems Inc., a majority-owned subsidiary of Thermo
Instrument.
Robert E. Finnigan has been a director of the Company since April 1997.
Dr. Finnigan served in various executive roles at and was a director of Finnigan
Corporation, an analytical instrument manufacturer, from 1967 to 1990, when it
was acquired by Thermo Instrument. Since 1990, he has served as a consultant,
from time to time, to Thermo Instrument on technology issues, and as an advisor
to Hambrecht & Quist's Environmental Technology Fund, a venture capital fund. He
is also a director of Strategic Diagnostics Inc.
Elias P. Gyftopoulos has been a director of the Company since its inception
in August 1994. He is Professor Emeritus at The Massachusetts Institute of
Technology, where he was the Ford Professor of Mechanical Engineering and of
Nuclear Engineering for more than 20 years until his retirement in 1996.
Dr. Gyftopoulos is also a director of Thermo Electron and the following
affiliates of Thermo Electron: Thermo BioAnalysis Corporation, Thermo
Cardiosystems Inc., ThermoLase Corporation, ThermoRetec Corporation, Thermo
Vision Corporation and Trex Medical Corporation.
Earl R. Lewis has been a director of the Company since its inception in
August 1994. He was the chairman of the board from June 1995 until March 1998
and was vice chairman of the board from August 1994 to June 1995. Mr. Lewis has
been president and chief executive officer of Thermo Instrument since
March 1997 and January 1998, respectively, and was chief operating officer of
Thermo Instrument from January 1996 to January 1998. Prior to that time, he was
executive vice president of Thermo Instrument from January 1996 to March 1997,
senior vice president of Thermo Instrument from January 1994 to January 1996 and
vice president of Thermo Instrument from March 1992 to January 1994. Mr. Lewis
has been chief operating officer, measurement and detection, of Thermo Electron
since September 1998. Prior to his appointment as chief operating officer,
Mr. Lewis served as senior vice president of Thermo Electron from June 1998 to
September 1998 and vice president from September 1996
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<PAGE>
to June 1998. Mr. Lewis served as chief executive officer of Thermo Optek
Corporation, a majority-owned subsidiary of Thermo Instrument and a manufacturer
of analytical instruments that measure energy and light for purposes of
materials analysis, characterization and preparation, from its inception in
August 1995 to January 1998, and served as president of its predecessor, Thermo
Jarrell Ash Corporation, for more than five years prior to 1995. Mr. Lewis is
also a director of SpectRx Inc. and the following affiliates of Thermo Electron:
FLIR Systems, Inc., Metrika Systems Corporation, ONIX Systems Inc.,
Spectra-Physics Lasers, Inc., Thermo BioAnalysis Corporation, Thermo Instrument,
Thermo Optek Corporation, ThermoQuest Corporation and Thermo Vision Corporation.
SECURITY OWNERSHIP OF
CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
PRINCIPAL STOCKHOLDER
The following table sets forth certain information regarding the beneficial
ownership of Common Stock as of July 3, 1999 with respect to the only person
that was known by the Company to own beneficially more than 5% of the
outstanding shares of Common Stock.
<TABLE>
<CAPTION>
NAME AND ADDRESS NUMBER OF SHARES PERCENTAGE OF OUTSTANDING
OF BENEFICIAL OWNER BENEFICIALLY OWNED SHARES BENEFICIALLY OWNED
- ------------------- ------------------ -------------------------
<S> <C> <C>
Thermo Electron Corporation (1)........................ 14,118,626 91.9%
81 Wyman Street
Waltham, MA 02454-9046
</TABLE>
- ------------------------
(1) Thermo Electron beneficially owned 91.9% of the Common Stock outstanding as
of July 3, 1999, of which approximately 82.2% is owned through Thermo
Instrument and approximately 9.7% is owned directly. Thermo Electron,
through Thermo Instrument, has the power to elect all of the members of the
Company's Board of Directors. After the Merger, Thermo Electron will
beneficially own 100% of the outstanding Common Stock.
MANAGEMENT
The following table sets forth the beneficial ownership of Common Stock, as
well as the common stock of Thermo Instrument and Thermo Electron, as of
June 30, 1999, with respect to (i) each director of the Company, (ii) the chief
executive officer of the Company and other executive officers of the Company
who, during the last completed fiscal year of the Company, met the definition of
"highly compensated" within the meaning of the Commission's executive
compensation disclosure rules (collectively, the "named executive officers") and
(iii) all directors and current executive officers as a group.
While certain directors and executive officers of the Company are also
directors and executive officers of Thermo Electron or its subsidiaries other
than the Company, all such persons disclaim beneficial ownership of the shares
of Common Stock owned by Thermo Instrument or by Thermo Electron, as the case
may be.
75
<PAGE>
<TABLE>
<CAPTION>
THERMOSPECTRA THERMO INSTRUMENT THERMO ELECTRON
CORPORATION(2) SYSTEMS INC.(3) CORPORATION(4)
---------------------- ---------------------- ----------------------
NUMBER OF PERCENTAGE NUMBER PERCENTAGE NUMBER OF PERCENTAGE
NAME(1) SHARES OF CLASS OF SHARES OF CLASS SHARES OF CLASS
- ------- --------- ---------- --------- ---------- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
Christopher J. Barron................... 33,000 * 12,833 * 1,548 *
Joseph A. Baute......................... 1,103 * 0 * 0 *
David J. Beaubien....................... 1,000 * 0 * 0 *
Robert E. Finnigan...................... 12,000 * 0 * 0 *
Elias P. Gyftopoulos.................... 22,022 * 57,743 * 71,698 *
Barry S. Howe........................... 119,010 * 138,389 * 73,742 *
Earl R. Lewis........................... 55,000 * 338,250 * 204,878 *
Ronald W. Lindell....................... 37,000 * 3,000 * 1,400 *
Richard S. Melanson..................... 42,100 * 8,000 * 4,700 *
Theo Melas-Kyriazi...................... 77,800 * 50,258 * 314,125 *
All directors and current executive
officers as a group (11 persons)...... 405,035 2.6 631,837 * 872,996 *
</TABLE>
- ------------------------
* Reflects ownership of less than 1.0% of the outstanding common stock.
(1) Except as reflected in the footnotes to this table, shares beneficially
owned consist of shares owned by the indicated person or by that person for
the benefit of minor children, and all share ownership includes sole voting
and investment power.
(2) The shares of Common Stock beneficially owned by Mr. Barron, Mr. Baute,
Mr. Beaubien, Dr. Finnigan, Dr. Gyftopoulos, Mr. Howe, Mr. Lewis,
Mr. Lindell, Mr. Melanson, Mr. Melas-Kyriazi and all directors and current
executive officers as a group include 33,000, 1,000, 1,000, 11,000, 21,000,
104,000, 50,000, 37,000, 37,100, 64,200 and 364,300 shares, respectively,
that such person or group had the right to acquire within 60 days of
June 30, 1999, through the exercise of stock options. Shares beneficially
owned by Mr. Baute, Dr. Gyftopoulos and all directors and current executive
officers as a group include 103, 22 and 125 shares, respectively, allocated
through April 3, 1999, to their respective accounts maintained under the
Company's Deferred Compensation Plan. Shares beneficially owned by
Dr. Finnigan include 1,000 shares held in a trust of which he and his spouse
are the trustees. No director or named executive officer beneficially owned
more than 1.0% of the Common Stock outstanding as of June 30, 1999; all
directors and current executive officers as a group beneficially owned 2.6%
of the Common Stock outstanding as of such date.
(3) Shares of the common stock of Thermo Instrument beneficially owned by
Mr. Barron, Dr. Gyftopoulos, Mr. Howe, Mr. Lewis, Mr. Lindell,
Mr. Melanson, Mr. Melas-Kyriazi and all directors and current executive
officers as a group include 12,375, 11,946, 113,750, 322,085, 3,000, 8,000,
44,295 and 534,201 shares, respectively, that such person or group had the
right to acquire within 60 days of June 30, 1999, through the exercise of
stock options. Shares of the common stock of Thermo Instrument beneficially
owned by Mr. Melas-Kyriazi and all directors and executive officers as a
group include 468 and 963 shares, respectively, allocated through June 30,
1999, to their respective accounts maintained pursuant to Thermo Electron's
employee stock ownership plan (the "ESOP"), of which the trustees, who have
investment power over its assets, are executive officers of Thermo Electron.
Shares beneficially owned by Mr. Howe include 374 shares held by him in
custodial accounts for the benefit of two minor children. Shares
beneficially owned by Mr. Lewis include 2,987 shares held by his spouse. No
director or named executive officer beneficially owned more than 1.0% of the
common stock of Thermo Instrument outstanding as of June 30, 1999; all
directors and current executive officers as a group did not beneficially own
more than 1.0% of the common stock of Thermo Instrument outstanding as of
such date.
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<PAGE>
(4) The shares of the common stock of Thermo Electron beneficially owned by
Mr. Barron, Dr. Gyftopoulos, Mr. Howe, Mr. Lewis, Mr. Lindell,
Mr. Melanson, Mr. Melas-Kyriazi and all directors and current executive
officers as a group include 1,400, 8,625, 65,757, 202,350, 1,400, 4,700,
275,811 and 728,030 shares, respectively, that such person or group had the
right to acquire within 60 days of June 30, 1999, through the exercise of
stock options. Shares of the common stock of Thermo Electron beneficially
owned by Mr. Melas-Kyriazi and all directors and current executive officers
as a group include 1,071 and 2,497 shares, respectively, allocated through
June 30, 1999, to accounts maintained pursuant to the ESOP. Shares
beneficially owned by Dr. Gyftopoulos and all the directors and current
executive officers as a group include 494 shares allocated through April 3,
1999 to Dr. Gyftopoulos' account maintained pursuant to Thermo Electron's
deferred compensation plan for directors. No director or named executive
officer beneficially owned more than 1.0% of the common stock of Thermo
Electron outstanding as of June 30, 1999; all directors and current
executive officers as a group did not beneficially own more than 1.0% of the
common stock of Thermo Electron outstanding as of such date.
CERTAIN TRANSACTIONS
Thermo Electron has, from time to time, caused certain subsidiaries to sell
minority interests to investors, resulting in several majority-owned private and
publicly held subsidiaries. Thermo Instrument has created the Company as a
majority-owned publicly held subsidiary. The Company and such other
majority-owned Thermo Electron subsidiaries are hereinafter referred to as the
"Thermo Subsidiaries."
Thermo Electron and each of the Thermo Subsidiaries recognize that the
benefits and support that derive from their affiliation are essential elements
of their individual performance. Accordingly, Thermo Electron and each of the
Thermo Subsidiaries, including the Company, have adopted the Thermo Electron
Corporate Charter (the "Charter") to define the relationships and delineate the
nature of such cooperation among themselves. The purpose of the Charter is to
ensure that (1) all of the companies and their stockholders are treated
consistently and fairly, (2) the scope and nature of the cooperation among the
companies, and each company's responsibilities, are adequately defined,
(3) each company has access to the combined resources and financial, managerial
and technological strengths of the others, and (4) Thermo Electron and the
Thermo Subsidiaries, in the aggregate, are able to obtain the most favorable
terms from outside parties.
To achieve these ends, the Charter identifies the general principles to be
followed by the companies, addresses the role and responsibilities of the
management of each company, provides for the sharing of group resources by the
companies and provides for centralized administrative, banking and credit
services to be performed by Thermo Electron. The services provided by Thermo
Electron include collecting and managing cash generated by members, coordinating
the access of Thermo Electron and the Thermo Subsidiaries (the "Thermo Group")
to external financing sources, ensuring compliance with external financial
covenants and internal financial policies, assisting in the formulation of
long-range planning and providing other banking and credit services. Pursuant to
the Charter, Thermo Electron may also provide guarantees of debt or other
obligations of the Thermo Subsidiaries or may obtain external financing at the
parent level for the benefit of the Thermo Subsidiaries. In certain instances,
the Thermo Subsidiaries may provide credit support to, or on behalf of, the
consolidated entity or may obtain financing directly from external financing
sources. Under the Charter, Thermo Electron is responsible for determining that
the Thermo Group remains in compliance with all covenants imposed by external
financing sources, including covenants related to borrowings of Thermo Electron
or other members of the Thermo Group, and for apportioning such constraints
within the Thermo Group. In addition, Thermo Electron establishes certain
internal policies and procedures applicable to members of the Thermo Group. The
cost of the services provided by Thermo Electron to the Thermo Subsidiaries is
covered under existing corporate services agreements between Thermo Electron and
the Thermo Subsidiaries.
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The Charter currently provides that it shall continue in effect so long as
Thermo Electron and at least one Thermo Subsidiary participate. The Charter may
be amended at any time by agreement of the participants. Any Thermo Subsidiary,
including the Company, can withdraw from participation in the Charter upon
30 days' prior notice. In addition, Thermo Electron may terminate a subsidiary's
participation in the Charter in the event the subsidiary ceases to be controlled
by Thermo Electron or ceases to comply with the Charter or the policies and
procedures applicable to the Thermo Group. A withdrawal from the Charter
automatically terminates the corporate services agreement and tax allocation
agreement (if any) in effect between the withdrawing company and Thermo
Electron. The withdrawal from participation does not terminate outstanding
commitments to third parties made by the withdrawing company, or by Thermo
Electron or other members of the Thermo Group, prior to the withdrawal. In
addition, a withdrawing company is required to continue to comply with all
policies and procedures applicable to the Thermo Group and to provide certain
administrative functions mandated by Thermo Electron so long as the withdrawing
company is controlled by or affiliated with Thermo Electron.
As provided in the Charter, the Company and Thermo Electron have entered
into a Corporate Services Agreement (the "Services Agreement") under which
Thermo Electron's corporate staff provides certain administrative services,
including general legal advice and services, risk management, employee benefit
administration, tax advice and preparation of tax returns, centralized cash
management and certain financial and other services to the Company. The Company
was assessed an annual fee equal to 1.0% and 0.8% of the Company's revenues for
these services in fiscal 1997 and 1998, respectively. The annual fee will remain
at 0.8% of the Company's total revenues for fiscal 1999. The fee is reviewed
annually and may be changed by mutual agreement of the Company and Thermo
Electron. During fiscal 1997, 1998 and the six months ended July 3, 1999, Thermo
Electron assessed the Company $1,989,000, $1,528,000 and $677,000 in fees under
the Services Agreement. Management believes that the charges under the Services
Agreement are reasonable and that the terms of the Services Agreement are fair
to the Company. In fiscal 1997, 1998 and the six months ended July 3, 1999, the
Company paid Thermo Electron an additional $94,000, $67,000 and $9,000 for
certain administrative services required by the Company that were not covered by
the Services Agreement. The Services Agreement automatically renews for
successive one-year terms, unless canceled by the Company upon 30 days' prior
notice. In addition, the Services Agreement terminates automatically in the
event the Company ceases to be a member of the Thermo Group or ceases to be a
participant in the Charter. In the event of a termination of the Services
Agreement, the Company will be required to pay a termination fee equal to the
fee that was paid by the Company for services under the Services Agreement for
the nine-month period prior to termination. Following termination, Thermo
Electron may provide certain administrative services on an as-requested basis by
the Company or as required in order to meet the Company's obligations under
Thermo Electron's policies and procedures. Thermo Electron will charge the
Company a fee equal to the market rate for comparable services if such services
are provided to the Company following termination.
The Company has entered into a Tax Allocation Agreement with Thermo Electron
that outlines the terms under which the Company will be included in Thermo
Electron's consolidated Federal and state income tax returns. Under current law,
the Company will be included in such tax returns so long as Thermo Electron owns
at least 80% of the outstanding common stock of Thermo Instrument, and Thermo
Instrument and Thermo Electron collectively own at least 80% of the outstanding
Common Stock of the Company. In years in which the Company has taxable income,
it will pay to Thermo Electron amounts comparable to the taxes the Company would
have paid if it had filed its own separate company tax returns. If Thermo
Instrument's and Thermo Electron's equity ownership of the Company were to drop
below 80%, the Company would file its own tax returns. In 1999, because Thermo
Instrument's and Thermo Electron's combined equity ownership of the Company now
exceeds 80%, the Company will be included in Thermo Electron's consolidated tax
returns and will be assessed for amounts due to Thermo Electron in accordance
with the Tax Allocation Agreement.
78
<PAGE>
From time to time, the Company may transact business with other companies in
the Thermo Group. During fiscal 1997, 1998 and the six months ended July 3,
1999, these transactions included the following:
In March 1997, Thermo Instrument acquired approximately 95% of the
outstanding shares of Life Sciences International PLC ("LSI"), a London Stock
Exchange-listed company. Subsequently, Thermo Instrument acquired the remaining
shares of LSI capital stock. In July 1997, the Company agreed to acquire NESLAB
Instruments, Inc. and its related sales and service entity, NESLAB Instruments
Europa BV in the Netherlands (collectively, "NESLAB"), a global supplier of
temperature control products and former LSI subsidiary, from Thermo Instrument
for approximately $76,222,000. The purchase price represented the sum of the net
tangible book value of the business as of June 28, 1997, plus a percentage of
Thermo Instrument's total cost in excess of net assets acquired associated with
its acquisition of LSI, based on NESLAB's 1996 revenues relative to LSI's 1996
consolidated revenues. The purchase price consisted of 2,759,042 shares of the
Company's Common Stock valued at $31,315,000 issued to Thermo Instrument and the
assumption of $44,907,000 of debt to Thermo Instrument, which was subsequently
paid by borrowing $45,000,000 from Thermo Electron. The purchase price included
$255,000 for the increase in net book value from the date the business was
acquired by Thermo Instrument to June 28, 1997.
To finance the acquisition of IRT Corporation in September 1994, the Company
borrowed $7,300,000 from Thermo Instrument pursuant to a promissory note due
September 2001. In connection with the 1996 acquisition of Kevex Instruments and
Kevex X-Ray, the Company borrowed $15,000,000 from Thermo Electron pursuant to a
promissory note that was paid in August 1998. In connection with the acquisition
of Park Scientific Instruments Corporation in March 1997, the Company borrowed
$10,000,000 from Thermo Electron pursuant to a promissory note that was paid in
March 1999. In connection with the acquisition of NESLAB from Thermo Instrument
in July 1997, the Company borrowed $45,000,000 from Thermo Electron pursuant to
a promissory note due July 1999, the maturity of which was extended by Thermo
Electron to December 1999. This note bears interest at the 30-day Dealer
Commercial Paper Rate plus 150 basis points, set at the beginning of each month.
To partially finance the acquisition of Sierra Research and Technology Inc. in
July 1997, the Company borrowed $5,000,000 from Thermo Electron pursuant to a
promissory note that was paid in July 1999.
The Company, along with certain other Thermo Subsidiaries, participates in a
notional pool arrangement with Barclays Bank, which includes, as of July 3,
1999, a $72,360,000 credit facility. The Company has access to $315,000 under
this credit facility. Only U.K.-based Thermo Subsidiaries participate in this
arrangement. Under this arrangement the Bank notionally combines the positive
and negative cash balances held by the participants to calculate the net
interest yield/expense for the group. The benefit derived from this arrangement
is then allocated based on balances attributable to the respective participants.
Thermo Electron guarantees all of the obligations of each participant in this
arrangement. As of July 3, 1999, the Company had a positive cash balance of
approximately $1,383,000, based on an exchange rate of $1.5763/GBP 1.00 as of
July 3, 1999. For the six months ended July 3, 1999, the average interest rate
earned on GBP deposits by participants in this credit arrangement was
approximately 5.61% and the average interest rate paid on overdrafts was
approximately 6.00%.
The Company, along with certain other Thermo Subsidiaries, also participates
in a pool arrangement with ABN AMRO. Only European-based Thermo Subsidiaries
participate in this arrangement. This arrangement consists of a zero balance
arrangement, which includes, as of July 3, 1999, a $22,534,000 credit facility.
The Company has access to $234,000 under this credit facility. Funds borrowed by
the Company under this arrangement pay interest at a rate set by Thermo Finance
B.V., a wholly-owned subsidiary of Thermo Electron, at the beginning of each
month, based on Netherlands market rates. Funds invested by the Company under
the arrangement earn a rate set by Thermo Finance B.V. at the beginning of each
month, based on Netherlands market rates. Thermo Electron guarantees all of the
obligations of each participant in this arrangement. As of July 3, 1999, the
Company had a positive cash balance of approximately $317,000, based on an
exchange rate of $0.4680/NLG 1.00 as of July 3, 1999. For the six months ended
July 3, 1999, the average interest rate earned on NLG deposits by participants
in this credit
79
<PAGE>
arrangement was approximately 3.29% and the average interest rate paid on
overdrafts was approximately 3.83%.
As of July 3, 1999, $7,243,000 of the Company's cash equivalents were
invested in a cash management arrangement with Thermo Electron, which was
effective June 1, 1999. Under the cash management arrangement, the Company lends
excess cash to Thermo Electron and has the contractual right to withdraw its
invested funds upon 30 days' prior notice. Thermo Electron is contractually
required to maintain cash, cash equivalents and/or immediately available bank
lines of credit equal to at least 50% of all funds invested under the
arrangement by all Thermo Electron subsidiaries other than wholly owned
subsidiaries. The Company's funds invested in the new arrangement earn a rate
equal to the 30-day Dealer Commercial Paper Rate as reported in THE WALL STREET
JOURNAL plus 50 basis points, set at the beginning of each month. In addition,
under the cash management arrangement, amounts borrowed from Thermo Electron by
the Company for domestic cash management purposes bear interest at the 30-day
Dealer Commercial Paper Rate plus 150 basis points. The Company has no
borrowings under this arrangement as of July 3, 1999.
As of July 3, 1999, the Company owed Thermo Electron and its other
subsidiaries an aggregate of $2,627,000, excluding the promissory notes
described above, for amounts due under the Services Agreement and related
administrative charges, for other products and services and for miscellaneous
items, net of amounts owed to the Company by Thermo Electron and its other
subsidiaries for products, services and for miscellaneous items. The largest
amount of such net indebtedness owed by the Company to Thermo Electron and its
other subsidiaries since January 3, 1998, was $5,648,000. These amounts do not
bear interest and are expected to be paid in the normal course of business.
In addition, the Company purchases and sells products and services in the
ordinary course of business with other companies affiliated with Thermo
Electron. In fiscal 1997, 1998 and the six months ended July 3, 1999, purchases
from these companies totaled $2,226,000, $2,013,000 and $1,103,000,
respectively, and sales to these companies totaled $825,000, $1,215,000 and
$421,000, respectively.
The human resources committee of the Company's board of directors
established a stock holding policy that required executive officers of the
Company to acquire and hold a minimum number of shares of Common Stock. In order
to assist the executive officers in complying with this policy, the Company also
adopted a stock holding assistance plan under which the Company may make
interest-free loans to executive officers to enable them to purchase shares of
Common Stock in the open market. The stock holding policy and the stock holding
assistance plan were both subsequently amended to apply only to the chief
executive officer. In 1996, Mr. Melas-Kyriazi received loans in the aggregate
principal amount of $164,831 under the stock holding assistance plan to purchase
12,525 shares of Common Stock, of which amount $131,864 was outstanding as of
July 3, 1999. In 1998, Mr. Howe, Mr. Melas-Kyriazi's successor as president and
chief executive officer of the Company, received a loan in the principal amount
of $141,992 to purchase 15,000 shares of Common Stock, the entire amount of
which was outstanding as of July 3, 1999. These loans are repayable upon the
earlier demand or the fifth anniversary of the date of the loan, unless
otherwise determined by the Committee.
80
<PAGE>
CERTAIN INFORMATION CONCERNING THE MERGER SUB,
THERMO INSTRUMENT AND THERMO ELECTRON
THE MERGER SUB
The Merger Sub is a newly-formed Delaware corporation organized at the
direction of Thermo Instrument for the sole purpose of facilitating the Merger
and has not conducted any prior business.
The principal executive offices of the Merger Sub are located at 81 Wyman
Street, P.O. Box 9046, Waltham, Massachusetts 02454-9046, and its telephone
number is (781) 622-1000.
THERMO INSTRUMENT
Thermo Instrument develops, manufactures and markets analytical instruments
used to identify complex chemical compounds, toxic metals and other elements in
a broad range of liquids and solids. Thermo Instrument also develops and
manufactures instruments used to monitor radioactivity and air pollution; life
sciences instruments and consumables; and imaging, inspection, measurement and
control instruments. These products are used for multiple applications in a
range of industries, including industrial processing, food and beverage
production, life sciences research and medical diagnostics.
The principal executive offices of Thermo Instrument are located at 81 Wyman
Street, P.O. Box 9046, Waltham, Massachusetts 02454-9046, and its telephone
number is (781) 622-1000.
THERMO ELECTRON
Thermo Electron develops, manufactures and markets monitoring, analytical
and biomedical instrumentation; biomedical products including heart-assist
devices, respiratory-care equipment and mammography systems; paper recycling and
papermaking equipment; alternative-energy systems and clean fuels; industrial
process equipment; and other specialized products. Thermo Electron also provides
a range of services that include industrial outsourcing, particularly in
environmental-liability management, laboratory analysis and metallurgical
processing; and conducts advanced-technology research and development.
The principal executive offices of Thermo Electron are located at 81 Wyman
Street, P.O. Box 9046, Waltham, Massachusetts 02454-9046, and its telephone
number is (781) 622-1000.
INDEPENDENT PUBLIC ACCOUNTANTS
The Consolidated Balance Sheet as of January 2, 1999 and January 3, 1998,
and the related Consolidated Statements of Income, Cash Flows, and Comprehensive
Income and Shareholders' Investment for each of the three years in the period
ended January 2, 1999, included in this Proxy Statement have been audited by
Arthur Andersen LLP, independent public accountants, as stated in their report.
Representatives of Arthur Andersen LLP are not expected to be at the Special
Meeting.
STOCKHOLDER PROPOSALS
Proposals of stockholders intended to be included in the proxy statement and
form of proxy relating to the 2000 Annual Meeting of the Stockholders of
ThermoSpectra must be received by the Company for inclusion in the proxy
statement and form of proxy no later than December 14, 1999. Notices of
stockholder proposals submitted outside the processes of Rule 14a-8 under the
Exchange Act (relating to proposals to be presented at the meeting but not
included in the Company's proxy statement and form of proxy), will be considered
untimely, and thus the Company's proxy may confer discretionary voting authority
on the persons named in the proxy with regard to such proposals, if received
after March 1, 2000.
81
<PAGE>
ADDITIONAL INFORMATION
Pursuant to the requirements of Section 13(e) of the Exchange Act, and
Rule 13e-3 promulgated thereunder, the Company, as issuer of the class of equity
securities that is the subject of the Rule 13e-3 transaction, together with the
Merger Sub, Thermo Instrument and Thermo Electron, have filed a Schedule 13E-3
with the Commission with respect to the transactions contemplated by the Merger
Agreement. As permitted by the rules and regulations of the Commission, this
Proxy Statement omits certain information, exhibits and undertakings contained
in the Schedule 13E-3. Such additional information can be inspected at and
obtained from the Commission in the manner set forth below under "AVAILABLE
INFORMATION."
Statements contained in this Proxy Statement or in any document incorporated
herein by reference as to the contents of any contract or other document
referred to herein or therein are not necessarily complete and in each instance
reference is made to such contract or other document filed as an exhibit to the
Schedule 13E-3 or such other document, and each such statement shall be deemed
qualified in its entirety by such reference.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act, and in accordance therewith files reports, proxy statements, and other
information with the Commission. The reports, proxy statements, and other
information filed with the Commission can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington D.C. 20549 and at the following Regional Offices of
the Commission: 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and
7 World Trade Center, Suite 1300, New York, New York 10048. Copies of such
material can be obtained at prescribed rates from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C.
20549. The Commission maintains a World Wide Web site on the Internet at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission, including the Company. The same information is also available on the
Internet at http://www.FreeEDGAR.com. The Common Stock is listed on the AMEX,
and such material that relates to the Company may also be inspected at the
offices of the American Stock Exchange, Inc., 86 Trinity Place, New York, New
York 10006-1881. See "INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE."
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATIONS,
OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROXY STATEMENT,
IN CONNECTION WITH THE MERGER, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MAY NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY,
THERMO INSTRUMENT, THERMO ELECTRON OR THE MERGER SUB. THE DELIVERY OF THIS PROXY
STATEMENT SHALL NOT IMPLY THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY, THE MERGER SUB, THERMO INSTRUMENT AND THERMO ELECTRON SINCE THE DATE
HEREOF OR THAT THE INFORMATION IN THIS PROXY STATEMENT OR IN THE DOCUMENTS
INCORPORATED BY REFERENCE HEREIN IS CURRENT AS OF ANY TIME SUBSEQUENT TO THE
DATE HEREOF OR THEREOF.
82
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the Commission
(File No. 1-13876) are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
January 2, 1999, as amended by Amendment No. 1 on Form 10-K/A filed with the
Commission on October 8, 1999;
2. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended April 3, 1999;
3. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended July 3, 1999, as amended by Amendment No. 1 on Form 10-Q/A filed with
the Commission on October 8, 1999; and
4. The Company's Current Report on Form 8-K, filed with the Commission
on May 25, 1999, regarding the entering into of the Merger Agreement with
Thermo Instrument.
Copies of the documents listed above (other than exhibits thereto that are
not specifically incorporated by reference herein) are available, without
charge, to any person, including any beneficial owner of Common Stock, to whom
this Proxy Statement is delivered, upon oral or written request to Sandra L.
Lambert, Secretary, ThermoSpectra Corporation, c/o Thermo Electron Corporation,
81 Wyman Street, P.O. Box 9046, Waltham, Massachusetts 02454-9046 (telephone
(781) 622-1000).
Any statements contained in a document incorporated or deemed to be
incorporated herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded. All information
appearing in this Proxy Statement is qualified in its entirety by the
information and financial statements (including notes thereto) appearing in the
documents incorporated herein by reference.
83
<PAGE>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Report of Independent Public Accountants.................... F-2
Consolidated Statement of Income for the six months ended
July 3, 1999, and July 4, 1998, and the years ended
January 2, 1999, January 3, 1998, and December 28, 1996... F-3
Consolidated Balance Sheet as of July 3, 1999, January 2,
1999, and January 3, 1998................................. F-4
Consolidated Statement of Cash Flows for the six months
ended July 3, 1999, and July 4, 1998, and the years ended
January 2, 1999, January 3, 1998, and December 28, 1996... F-6
Consolidated Statement of Comprehensive Income and
Shareholders' Investment for the six months ended July 3,
1999, and the years ended January 2, 1999, January 3,
1998, and December 28, 1996............................... F-8
Notes to Consolidated Financial Statements.................. F-9
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Shareholders and Board of Directors of ThermoSpectra Corporation:
We have audited the accompanying consolidated balance sheet of ThermoSpectra
Corporation (a Delaware corporation and 82%-owned subsidiary of Thermo
Instrument Systems Inc.) and subsidiaries as of January 2, 1999, and January 3,
1998, and the related consolidated statements of income, cash flows, and
comprehensive income and shareholders' investment for each of the three years in
the period ended January 2, 1999. These consolidated financial statements are
the responsibility of the Company's management. Our responsibility is to express
an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the consolidated financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of
ThermoSpectra Corporation and subsidiaries as of January 2, 1999, and January 3,
1998, and the results of their operations and their cash flows for each of the
three years in the period ended January 2, 1999, in conformity with generally
accepted accounting principles.
Arthur Andersen LLP
Boston, Massachusetts
February 16, 1999 (except with
respect to certain matters discussed
in Note 16, as to which
the date is June 1, 1999)
F-2
<PAGE>
THERMOSPECTRA CORPORATION
CONSOLIDATED STATEMENT OF INCOME
(IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED YEAR ENDED
------------------- -----------------------------------------
JULY 3, JULY 4, JANUARY 2, JANUARY 3, DECEMBER 28,
1999 1998 1999 1998 1996
-------- -------- ----------- ----------- -------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
REVENUES (Notes 8 and 12).................. $ 84,609 $102,125 $191,017 $198,900 $123,199
-------- -------- -------- -------- --------
Costs and Operating Expenses:
Cost of revenues (Note 8)................ 50,487 58,831 110,915 115,747 62,900
Selling, general, and administrative
expenses (Note 8)...................... 23,478 27,278 53,643 53,182 36,493
Research and development expenses........ 7,530 8,712 16,298 17,303 12,910
Restructuring costs (Note 4)............. 875 -- 4,320 953 1,038
Other nonrecurring income (Note 3)....... (45) (339) (102) (2,210) (867)
-------- -------- -------- -------- --------
82,325 94,482 185,074 184,975 112,474
-------- -------- -------- -------- --------
Operating Income........................... 2,284 7,643 5,943 13,925 10,725
Interest Income............................ 364 773 1,333 692 935
Interest Expense........................... -- -- (3) (66) --
Interest Expense, Related Party (Note 8)... (1,577) (2,376) (4,334) (4,151) (773)
Gain on Sale of Investment (Note 3)........ -- -- 713 -- --
-------- -------- -------- -------- --------
Income Before Provision for Income Taxes... 1,071 6,040 3,652 10,400 10,887
Provision for Income Taxes (Note 6)........ 515 2,480 1,827 4,552 4,270
-------- -------- -------- -------- --------
NET INCOME................................. $ 556 $ 3,560 $ 1,825 $ 5,848 $ 6,617
======== ======== ======== ======== ========
EARNINGS PER SHARE (Note 13)
Basic.................................... $ .04 $ .23 $ .12 $ .40 $ .53
======== ======== ======== ======== ========
Diluted.................................. $ .04 $ .23 $ .12 $ .39 $ .53
======== ======== ======== ======== ========
WEIGHTED AVERAGE SHARES (Note 13)
Basic.................................... 15,338 15,322 15,324 14,694 12,437
======== ======== ======== ======== ========
Diluted.................................. 15,430 15,344 15,354 14,806 12,570
======== ======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-3
<PAGE>
THERMOSPECTRA CORPORATION
CONSOLIDATED BALANCE SHEET
(IN THOUSANDS)
<TABLE>
<CAPTION>
JULY 3, JANUARY 2, JANUARY 3,
1999 1999 1998
----------- ----------- -----------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents................................. $ 9,723 $ 20,717 $ 20,672
Advance to affiliate (Note 16)............................ 7,243 -- --
Available-for-sale investments, at quoted market value
(cost of $2,056 in 1997; Note 2)........................ -- -- 2,083
Accounts receivable, less allowances of $2,172, $2,386,
and $1,934.............................................. 36,792 41,016 43,015
Inventories............................................... 30,536 31,745 34,785
Prepaid income taxes (Note 6)............................. 13,107 10,188 7,337
Other current assets...................................... 2,343 2,271 1,774
-------- -------- --------
99,744 105,937 109,666
-------- -------- --------
Property, Plant, and Equipment, at Cost, Net................ 16,212 16,991 20,391
-------- -------- --------
Patents, Trademarks, and Other Assets....................... 7,059 7,280 8,108
-------- -------- --------
Cost in Excess of Net Assets of Acquired Companies (Note
3)........................................................ 117,210 119,674 115,232
-------- -------- --------
$240,225 $249,882 $253,397
======== ======== ========
</TABLE>
F-4
<PAGE>
THERMOSPECTRA CORPORATION
CONSOLIDATED BALANCE SHEET (CONTINUED)
(IN THOUSANDS EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
JULY 3, JANUARY 2, JANUARY 3,
1999 1999 1998
----------- ----------- -----------
(UNAUDITED)
<S> <C> <C> <C>
LIABILITIES AND SHAREHOLDERS' INVESTMENT
Current Liabilities:
Notes payable (includes $50,000, $60,000, and $15,000 due
to Thermo Electron; Notes 3 and 8)...................... $ 52,714 $ 60,000 $ 15,000
Accounts payable.......................................... 13,135 11,822 12,842
Accrued payroll and employee benefits..................... 5,221 6,239 6,987
Accrued installation and warranty expenses................ 4,533 4,362 4,495
Deferred revenue.......................................... 3,624 4,360 4,695
Accrued income taxes...................................... 4,770 3,735 2,050
Accrued restructuring costs (Note 4)...................... 907 2,459 244
Other accrued expenses (Note 3)........................... 11,025 10,684 8,252
Due to parent company and affiliated companies............ 2,627 4,528 1,561
-------- -------- --------
98,556 108,189 56,126
-------- -------- --------
Deferred Income Taxes (Note 6).............................. 2,946 1,651 356
-------- -------- --------
Other Deferred Items........................................ 1,750 1,907 1,277
-------- -------- --------
Long-term Obligations, Due to Related Party (Notes 3 and
8)........................................................ 7,300 7,300 67,300
-------- -------- --------
Commitments and Contingencies (Notes 7 and 8)
Shareholders' Investment (Notes 3, 5, and 10):
Common stock, $.01 par value, 25,000,000 shares
authorized; 15,369,190, 15,327,620, and 15,313,506
shares issued........................................... 154 153 153
Capital in excess of par value............................ 111,900 111,549 111,262
Retained earnings......................................... 20,319 19,763 17,938
Treasury stock at cost, 423 shares........................ (7) (7) (7)
Accumulated other comprehensive items (Note 14)........... (2,693) (623) (1,008)
-------- -------- --------
129,673 130,835 128,338
-------- -------- --------
$240,225 $249,882 $253,397
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE>
THERMOSPECTRA CORPORATION
CONSOLIDATED STATEMENT OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED YEAR ENDED
------------------- -----------------------------------------
JULY 3, JULY 4, JANUARY 2, JANUARY 3, DECEMBER 28,
1999 1998 1999 1998 1996
-------- -------- ----------- ----------- -------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES
Net income.............................. $ 556 $ 3,560 $ 1,825 $ 5,848 $ 6,617
Adjustments to reconcile net income to
net cash provided by operating
activities:
Depreciation and amortization....... 4,346 3,581 7,073 6,615 4,493
Provision for losses on accounts
receivable........................ 44 96 689 521 199
Gain on sales of building,
investment, and business, net
(Note 3).......................... (45) (339) (815) (2,210) --
Other noncash expenses.............. 486 495 2,554 1,417 839
Deferred income tax benefit......... -- -- (1,432) (40) (796)
Changes in current accounts,
excluding the effects of
acquisitions and dispositions:
Accounts receivable............. 2,956 3,146 3,597 (733) (3,444)
Inventories..................... 653 486 3,260 4,873 (3,105)
Other current assets............ (126) (427) (170) (81) 335
Accounts payable................ 1,485 (849) (1,988) (2,330) 2,123
Due to parent company and
affiliated companies.......... (1,352) 2,013 2,967 (2,699) 426
Other current liabilities....... (3,111) (1,171) 3,841 (2,829) (2,238)
Other............................... -- 106 (343) 34 (21)
-------- ------- -------- -------- --------
Net cash provided by operating
activities...................... 5,892 10,697 21,058 8,386 5,428
-------- ------- -------- -------- --------
INVESTING ACTIVITIES
Acquisitions, net of cash acquired
(Note 3).............................. -- -- (7,943) (21,142) (22,521)
Proceeds from sale of product lines and
business (Note 3)..................... -- 750 750 4,980 --
Refund of acquisition purchase price
(Note 3).............................. 595 -- -- -- 1,103
Advances to affiliate, net (Note 16).... (7,243) -- -- -- --
Purchases of property, plant, and
equipment............................. (2,193) (942) (2,199) (2,595) (2,762)
Proceeds from sale of property, plant,
and equipment......................... 160 2,052 2,052 91 168
Proceeds from sale and maturities of
available-for-sale investments
(Note 3).............................. -- -- 2,769 -- 3,000
Purchases of available-for-sale
investments........................... -- -- -- -- (3,000)
Other, net.............................. (148) (30) (111) (926) (733)
-------- ------- -------- -------- --------
Net cash provided by (used in)
investing activities............ $ (8,829) $ 1,830 $ (4,682) $(19,592) $(24,745)
-------- ------- -------- -------- --------
</TABLE>
F-6
<PAGE>
THERMOSPECTRA CORPORATION
CONSOLIDATED STATEMENT OF CASH FLOWS (CONTINUED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED YEAR ENDED
------------------- -----------------------------------------
JULY 3, JULY 4, JANUARY 2, JANUARY 3, DECEMBER 28,
1999 1998 1999 1998 1996
-------- -------- ----------- ----------- -------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
FINANCING ACTIVITIES
Repayment of long-term obligations to
Thermo Electron....................... $(10,000) $ -- $(15,000) $ -- $ --
Proceeds from issuance of long-term
obligations to Thermo Electron
(Note 8).............................. -- -- -- 60,000 15,000
Payment to Thermo Instrument for debt
assumed in connection with acquisition
of NESLAB (Note 3).................... -- -- -- (44,907) --
Net proceeds from issuance of Company
common stock.......................... 352 42 48 561 74
Change in short-term borrowings and
Other................................. 2,812 -- 239 (674) 552
-------- ------- -------- -------- --------
Net cash provided by (used in)
financing activities............ (6,836) 42 (14,713) 14,980 15,626
-------- ------- -------- -------- --------
Exchange Rate Effect on Cash.............. (1,221) (89) (1,618) 318 (35)
-------- ------- -------- -------- --------
Increase (Decrease) in Cash and Cash
Equivalents............................. (10,994) 12,480 45 4,092 (3,726)
Cash and Cash Equivalents at Beginning of
Period.................................. 20,717 20,672 20,672 16,580 20,306
-------- ------- -------- -------- --------
Cash and Cash Equivalents at End of
Period.................................. $ 9,723 $33,152 $ 20,717 $ 20,672 $ 16,580
======== ======= ======== ======== ========
CASH PAID FOR
Interest................................ $ 2,185 $ 2,376 $ 4,335 $ 4,217 $ 773
Income taxes............................ $ 199 $ 402 $ 1,158 $ 4,490 $ 3,419
NONCASH ACTIVITIES
Common stock received from sale of
business (Note 3)..................... $ -- $ -- $ -- $ 2,056 $ --
Fair value of assets of acquired
companies............................. $ -- $ -- $ 10,519 $114,495 $ 29,757
Cash paid for acquired companies........ -- -- (7,967) (24,379) (22,525)
Stock options issued in connection with
acquisition of PSI.................... -- -- -- (1,693) --
Stock issuable to Thermo Instrument in
connection with acquisition of
NESLAB................................ -- -- -- (31,315) --
Debt assumed in connection with
acquisition of NESLAB................. -- -- -- (44,907) --
-------- ------- -------- -------- --------
Liabilities assumed of acquired
companies........................... $ -- $ -- $ 2,552 $ 12,201 $ 7,232
======== ======= ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-7
<PAGE>
THERMOSPECTRA CORPORATION
CONSOLIDATED STATEMENT OF COMPREHENSIVE INCOME AND SHAREHOLDERS' INVESTMENT
(IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED
ENDED --------------------------------------
JULY 3, JANUARY 2, JANUARY 3, DECEMBER 28,
1999 1999 1998 1996
----------- ---------- ---------- ------------
(UNAUDITED)
<S> <C> <C> <C> <C>
COMPREHENSIVE INCOME
Net Income........................................... $ 556 $ 1,825 $ 5,848 $ 6,617
-------- -------- -------- --------
Other Comprehensive Items, Net (Note 14):
Foreign currency translation adjustment............ (2,070) 412 (776) 23
Unrealized gain (loss) on available-for-sale
investments...................................... -- (27) 27 --
-------- -------- -------- --------
(2,070) 385 (749) 23
-------- -------- -------- --------
$ (1,514) $ 2,210 $ 5,099 $ 6,640
======== ======== ======== ========
SHAREHOLDERS' INVESTMENT
Common Stock, $.01 Par Value:
Balance at beginning of period..................... $ 153 $ 153 $ 124 $ 124
Stock issued to Thermo Instrument in connection
with acquisition of NESLAB (Note 3).............. -- -- 28 --
Issuance of Company common stock................... 1 -- 1 --
-------- -------- -------- --------
Balance at end of period........................... 154 153 153 124
-------- -------- -------- --------
Capital in Excess of Par Value:
Balance at beginning of period..................... 111,549 111,262 77,416 76,955
Stock issued to Thermo Instrument in connection
with acquisition of NESLAB (Note 3).............. -- -- 31,287 --
Stock options issued in connection with acquisition
of PSI (Note 3).................................. -- -- 1,693 --
Issuance of Company common stock................... 351 48 562 79
Capital contribution from parent company........... -- 125 -- --
Tax benefit related to employees' and directors'
stock plans...................................... -- 114 304 382
-------- -------- -------- --------
Balance at end of period........................... 111,900 111,549 111,262 77,416
-------- -------- -------- --------
Retained Earnings:
Balance at beginning of period..................... 19,763 17,938 12,345 5,728
Net income......................................... 556 1,825 5,848 6,617
Deemed distribution to Thermo Instrument in
connection with acquisition of NESLAB
(Note 3)......................................... -- -- (255) --
-------- -------- -------- --------
Balance at end of period........................... 20,319 19,763 17,938 12,345
-------- -------- -------- --------
Treasury Stock:
Balance at beginning of period..................... (7) (7) (5) --
Purchases of Company common stock.................. -- -- (2) (5)
-------- -------- -------- --------
Balance at end of period........................... (7) (7) (7) (5)
-------- -------- -------- --------
Accumulated Other Comprehensive Items (Note 14):
Balance at beginning of period..................... (623) (1,008) (259) (282)
Other comprehensive items, net..................... (2,070) 385 (749) 23
-------- -------- -------- --------
Balance at end of period........................... (2,693) (623) (1,008) (259)
-------- -------- -------- --------
$129,673 $130,835 $128,338 $ 89,621
======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-8
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. NATURE OF OPERATIONS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
NATURE OF OPERATIONS
ThermoSpectra Corporation (the Company) develops, manufactures, and markets
imaging and inspection, temperature control, and test and measurement
instruments, which represent 45%, 32%, and 23% of the Company's 1998 revenues,
respectively. The Company sells its products on a worldwide basis (Note 12).
RELATIONSHIP WITH THERMO INSTRUMENT SYSTEMS INC. AND THERMO ELECTRON CORPORATION
The Company was incorporated in August 1994 as an indirect, wholly owned
subsidiary of Thermo Instrument Systems Inc. As of January 2, 1999, Thermo
Instrument owned 12,637,417 shares of the Company's common stock, representing
82% of such stock outstanding. Thermo Instrument is an 85%-owned subsidiary of
Thermo Electron Corporation. As of January 2, 1999, Thermo Electron owned
1,491,453 shares of the Company's common stock, representing 10% of such stock
outstanding.
Thermo Electron has announced a proposed reorganization involving certain of
Thermo Electron's subsidiaries, including the Company. As part of this
reorganization, Thermo Electron announced that the Company may be taken private
(Note 16).
PRINCIPLES OF CONSOLIDATION
The accompanying financial statements include the accounts of the Company
and its wholly owned subsidiaries. All material intercompany accounts and
transactions have been eliminated.
FISCAL YEAR
The Company has adopted a fiscal year ending the Saturday nearest December
31. References to 1998, 1997, and 1996 are for the fiscal years ended January 2,
1999, January 3, 1998, and December 28, 1996, respectively. Fiscal years 1998
and 1996 each included 52 weeks; 1997 included 53 weeks.
REVENUE RECOGNITION
The Company recognizes product revenue upon shipment. The Company provides a
reserve for its estimate of warranty and installation costs at the time of
shipment. Deferred revenue in the accompanying balance sheet consists of
unearned revenue on service contracts, which is recognized as revenue over the
life of the service contract. Substantially all of the deferred revenue included
in the accompanying 1998 balance sheet will be recognized within one year.
SOFTWARE DEVELOPMENT COSTS
In accordance with Statement of Financial Accounting Standards (SFAS) No.
86, "Accounting for the Costs of Computer Software to be Sold, Leased, or
Otherwise Marketed," software development costs are expensed as incurred until
technological feasibility has been established. The Company believes that, under
its current process for developing software, the software is essentially
completed concurrently with the establishment of technological feasibility.
Accordingly, no software development costs have been capitalized.
F-9
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. NATURE OF OPERATIONS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(CONTINUED)
STOCK-BASED COMPENSATION PLANS
The Company applies Accounting Principles Board Opinion (APB) No. 25,
"Accounting for Stock Issued to Employees" and related interpretations in
accounting for its stock-based compensation plans (Note 5). Accordingly, no
accounting recognition is given to stock options granted at fair market value
until they are exercised. Upon exercise, net proceeds, including tax benefits
realized, are credited to shareholders' investment.
INCOME TAXES
The Company's initial public offering in August 1995 resulted in a reduction
of Thermo Instrument's equity ownership of the Company below 80% and, as a
result, the Company was required to file its own federal income tax returns for
1996 through 1998. Thermo Instrument's equity ownership of the Company now
exceeds 80%, therefore, effective January 3, 1999, the Company will be included
in Thermo Electron's consolidated tax return as provided for under a tax
allocation agreement between the Company and Thermo Instrument. This agreement
provides that, in years that the Company has taxable income, the Company will
pay to Thermo Instrument amounts comparable to the taxes the Company would have
paid if it had filed separate tax returns.
In accordance with SFAS No. 109, "Accounting for Income Taxes," the Company
recognizes deferred income taxes based on the expected future tax consequences
of differences between the financial statement basis and the tax basis of assets
and liabilities, calculated using enacted tax rates in effect for the year in
which the differences are expected to be reflected in the tax return.
EARNINGS PER SHARE
Basic earnings per share have been computed by dividing net income by the
weighted average number of shares outstanding during the year. Diluted earnings
per share have been computed assuming the exercise of stock options, as well as
their related income tax effects.
CASH AND CASH EQUIVALENTS
At year-end 1998 and 1997, $10,323,000 and $14,311,000, respectively, of the
Company's cash equivalents were invested in a repurchase agreement with Thermo
Electron. Under this agreement, the Company in effect lends excess cash to
Thermo Electron, which Thermo Electron collateralizes with investments
principally consisting of corporate notes, U.S. government-agency securities,
commercial paper, money market funds, and other marketable securities, in the
amount of at least 103% of such obligation. The Company's funds subject to the
repurchase agreement are readily convertible into cash by the Company. The
repurchase agreement earns a rate based on the 90-day Commercial Paper Composite
Rate plus 25 basis points, set at the beginning of each quarter (Note 16).
At year-end 1998, $147,000 of the Company's cash equivalents, denominated in
Dutch guilders, were invested in a repurchase agreement with a wholly owned
subsidiary of Thermo Electron under terms similar to those outlined in the above
agreement, except that the rate earned is based on Netherlands market rates, set
at the beginning of each month.
The Company, along with other subsidiaries of Thermo Electron, participates
in a notional pool arrangement with Barclays Bank, which includes a $71 million
credit facility. The Company has access to
F-10
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. NATURE OF OPERATIONS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(CONTINUED)
$2,423,000 under this credit facility, which is included in the amount available
for use as discussed in Note 9. Only U.K.-based subsidiaries of Thermo Electron
participate in this arrangement. Under this arrangement, Barclays notionally
combines the positive and negative cash balances held by the participants to
calculate the net interest yield/expense for the group. The benefit derived from
this arrangement is then allocated based on balances attributable to the
respective participants. Thermo Electron guarantees all of the obligations of
each participant in this arrangement. At year-end 1998 and 1997, the Company had
a positive cash balance under this arrangement of $1,958,000 and $44,000,
respectively.
At year-end 1998 and 1997, the Company's cash equivalents also included
investments in short-term certificates of deposit held by the Company's foreign
operations, which have an original maturity of three months or less. Cash
equivalents are carried at cost, which approximates market value.
INVENTORIES
Inventories are stated at the lower of cost (on a first-in, first-out basis)
or market value and include materials, labor, and manufacturing overhead. The
components of inventories are:
<TABLE>
<CAPTION>
1998 1997
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Raw Materials and Supplies................................ $18,355 $16,850
Work in Process........................................... 5,899 7,096
Finished Goods............................................ 7,491 10,839
------- -------
$31,745 $34,785
======= =======
</TABLE>
The Company periodically reviews the quantities of inventories on hand and
compares these amounts to expected usage of each particular product or product
line. The Company records as a charge to cost of revenues any amounts required
to reduce the carrying value of inventories to net realizable value.
PROPERTY, PLANT, AND EQUIPMENT
The costs of additions and improvements are capitalized, while maintenance
and repairs are charged to expense as incurred. The Company provides for
depreciation and amortization using the straight-line method over the estimated
useful lives of the property as follows: buildings and improvements, 5 to 30
years; machinery and equipment, 2 to 10 years; and leasehold improvements, the
shorter of the term of the lease or the life of the asset. Property, plant, and
equipment consists of:
<TABLE>
<CAPTION>
1998 1997
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Land...................................................... $ 2,424 $ 3,067
Buildings................................................. 6,238 6,910
Machinery, Equipment, and Leasehold Improvements.......... 21,855 21,131
------- -------
30,517 31,108
Less: Accumulated Depreciation and Amortization........... 13,526 10,717
------- -------
$16,991 $20,391
======= =======
</TABLE>
F-11
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. NATURE OF OPERATIONS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(CONTINUED)
PATENTS, TRADEMARKS, AND OTHER ASSETS
Patents, trademarks, and other assets in the accompanying balance sheet
includes the costs of acquired patents and trademarks that are amortized using
the straight-line method over an estimated useful life of 3 to 20 years. These
assets were $4,028,000 and $4,826,000, net of accumulated amortization of
$2,965,000 and $2,135,000, at year-end 1998 and 1997, respectively.
COST IN EXCESS OF NET ASSETS OF ACQUIRED COMPANIES
The excess of cost over the fair value of net assets of acquired companies
is amortized using the straight-line method over 40 years. Accumulated
amortization was $8,015,000 and $4,927,000 at year-end 1998 and 1997,
respectively. The Company assesses the future useful life of this asset whenever
events or changes in circumstances indicate that the current useful life has
diminished. The Company considers the future undiscounted cash flows of the
acquired businesses in assessing the recoverability of this asset. If impairment
occurs, any excess of carrying value over fair value is recorded as a loss.
FOREIGN CURRENCY
All assets and liabilities of the Company's foreign subsidiaries are
translated at year-end exchange rates, and revenues and expenses are translated
at average exchange rates for the year in accordance with SFAS No. 52, "Foreign
Currency Translation." Resulting translation adjustments are reflected in the
"Accumulated other comprehensive items" component of shareholders' investment
(Note 14). Foreign currency transaction gains and losses are included in the
accompanying statement of income and are not material for the three years
presented.
FORWARD CONTRACTS
The Company uses short-term forward foreign exchange contracts to manage
exposures related to firm purchase and sale commitments that are denominated in
currencies other than its subsidiaries' local currencies. These contracts
principally hedge transactions denominated in U.S. dollars, British pound
sterling, Japanese yen, French francs, and German marks. The purpose of the
Company's foreign currency hedging activities is to protect the Company's local
currency cash flows related to these commitments from fluctuations in foreign
exchange rates. Gains and losses arising from forward foreign exchange contracts
are recorded as an offset to the gains and losses resulting from the
transactions being hedged. The Company does not enter into speculative foreign
currency agreements.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities,
disclosure of contingent assets and liabilities at the date of the financial
statements, and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
PRESENTATION
Certain amounts in 1997 and 1996 have been reclassified to conform to the
presentation in the 1998 financial statements.
F-12
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
1. NATURE OF OPERATIONS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(CONTINUED)
INTERIM FINANCIAL STATEMENTS
The financial statements as of July 3, 1999, and for the six-month periods
ended July 3, 1999, and July 4, 1998, are unaudited but, in the opinion of
management, reflect all adjustments of a normal recurring nature necessary for a
fair presentation of results for these interim periods. The results of
operations for the six-month period ended July 3, 1999, are not necessarily
indicative of the results to be expected for the entire year.
2. AVAILABLE-FOR-SALE INVESTMENTS
The Company's marketable equity securities are considered available-for-sale
investments and are carried at market value, with the difference between cost
and market value, net of related tax effects, recorded in the "Accumulated Other
Comprehensive Items" component of shareholders' investment. Available-for-sale
investments in the accompanying 1997 balance sheet represent common stock
received in connection with the sale of its Linac business (Note 3).
3. ACQUISITIONS AND DISPOSITIONS
ACQUISITIONS
In October 1998, the Company acquired the assets, subject to certain
liabilities, of TopoMetrix Corporation, a scanning probe microscope
manufacturing business, for approximately $7,967,000 in cash, subject to a
post-closing adjustment. The cost of this acquisition exceeded the estimated
fair value of the net assets by $7,061,000. The businesses of Park Scientific
Instruments Corporation (PSI) and TopoMetrix were combined and renamed
ThermoMicroscopes Corporation.
In July 1997, the Company acquired Sierra Research and Technology Inc.
(SRT), a manufacturer of systems used for the rework and repair of printed
circuit boards, for $7,638,000 in cash. The cost of this acquisition exceeded
the estimated fair value of the net assets by $6,368,000. To partially finance
the acquisition, the Company borrowed $5,000,000 from Thermo Electron (Note 8).
In March 1997, Thermo Instrument acquired Life Sciences International PLC
(LSI), a London Stock Exchange-listed company. In July 1997, the Company agreed
to acquire NESLAB Instruments, Inc. and its related sales and service entity,
NESLAB Instruments Europa BV in the Netherlands, (collectively, NESLAB), a
global supplier of temperature control systems and former LSI subsidiary, from
Thermo Instrument for $76,222,000. The purchase price represents the sum of the
net tangible book value of the business as of June 28, 1997, plus a percentage
of Thermo Instrument's total cost in excess of net assets acquired associated
with its acquisition of LSI, based on NESLAB's 1996 revenues relative to LSI's
1996 consolidated revenues. The Company believes that this allocation
methodology is reasonable and in accordance with the guidance provided by
Securities and Exchange Commission Staff Accounting Bulletin (SAB) 55
(Topic 1:B).
The purchase price of NESLAB consisted of 2,759,042 shares of Company common
stock valued at $31,315,000 issued to Thermo Instrument and the assumption of
$44,907,000 of debt to Thermo Instrument, which was subsequently paid. To repay
the debt assumed from Thermo Instrument, the Company borrowed $45,000,000 from
Thermo Electron (Note 8). The cost of this acquisition exceeded the estimated
fair value of the net assets by $57,774,000.
F-13
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
3. ACQUISITIONS AND DISPOSITIONS (CONTINUED)
Because the Company and NESLAB were deemed for accounting purposes to be
under control of their common majority owner, Thermo Instrument, the transaction
has been accounted for in a manner similar to a pooling of interests.
Accordingly, the accompanying financial statements include the results of NESLAB
from March 12, 1997, the date the business was acquired by Thermo Instrument and
the shares issued have been treated as outstanding from that date. The purchase
price included $255,000 for the increase in net book value from the date the
business was acquired by Thermo Instrument to June 28, 1997. This amount was
recorded as a reduction in retained earnings.
In March 1997, the Company acquired PSI, a manufacturer of scanning-probe
microscopes used in industry and academia to test and measure the topography and
other surface properties of materials, for $16,702,000 in cash, including the
repayment of $1,300,000 of bank debt. In addition, the Company assumed
outstanding PSI stock options, which were converted into stock options that are
exercisable into 144,941 shares of Company common stock at a weighted average
exercise price of $3.07 per share, with an aggregate value of $1,693,000 as of
the date of the merger agreement. The cost of this acquisition exceeded the
estimated fair value of the net assets by $14,132,000. To partially finance the
acquisition, the Company borrowed $10,000,000 from Thermo Electron (Note 8).
In March 1996, Thermo Instrument acquired a substantial portion of the
businesses comprising the Scientific Instruments Division of Fisons plc, a
wholly owned subsidiary of Rhone-Poulenc Rorer, Inc. Pursuant to an agreement
executed in August 1996, the Company acquired Kevex Instruments and Kevex X-Ray
(the Kevex businesses), which were formerly part of Fisons, from Thermo
Instrument for $21,567,000 in cash. To partially finance the acquisition, the
Company borrowed $15,000,000 from Thermo Electron, which was repaid in 1998
(Note 8). The purchase price was determined based on the net book value of the
Kevex businesses at March 29, 1996, and a pro rata allocation of Thermo
Instrument's total cost in excess of the net assets of acquired companies
recorded in connection with the acquisition of the Fisons businesses. The
Company believes that this allocation methodology is reasonable and in
accordance with the guidance provided by SAB 55 (Topic 1:B). The cost of this
acquisition exceeded the estimated fair value of the net assets by $10,046,000.
Kevex Instruments is a manufacturer of X-ray microanalyzers and X-ray
fluorescence instruments and Kevex X-Ray is a manufacturer of specialty X-ray
sources.
Because the Company and the Kevex businesses were deemed for accounting
purposes to be under control of their common majority owner, Thermo Instrument,
the transaction has been accounted for in a manner similar to a pooling of
interests. Accordingly, the Company's 1996 financial statements include the
results of the Kevex businesses from March 29, 1996, the date these businesses
were acquired by Thermo Instrument. During 1996, the Company acquired two
additional companies for an aggregate $900,000 in cash.
Except for NESLAB and the Kevex businesses, the acquisitions described above
have been accounted for using the purchase method of accounting and their
results of operations have been included in the accompanying financial
statements from their respective dates of acquisition. Allocation of the
purchase price for these acquisitions was based on estimates of the fair value
of the net assets acquired and, for TopoMetrix, is subject to adjustment. The
Company has gathered no information that indicates the final allocation of the
purchase price for TopoMetrix will differ materially from the preliminary
estimate.
In connection with these acquisitions, the Company has undertaken
restructuring activities at the acquired businesses. The Company's restructuring
activities, which were accounted for in accordance with Emerging Issues Task
Force Pronouncement (EITF) 95-3, primarily have included reductions in staffing
F-14
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
3. ACQUISITIONS AND DISPOSITIONS (CONTINUED)
levels and the abandonment of excess facilities. In connection with these
restructuring activities, as part of the cost of the acquisitions, the Company
established reserves as detailed below, primarily for severance and excess
facilities. In accordance with EITF 95-3, the Company finalizes its
restructuring plans no later than one year from the respective dates of the
acquisitions.
A summary of the changes in accrued acquisition expenses for severance
follows:
<TABLE>
<CAPTION>
IMAGING AND
INSPECTION TEMPERATURE
SEGMENT CONTROL
------------------- SEGMENT
TOPO- -----------
KEVEX METRIX NESLAB OTHER TOTAL
-------- -------- ----------- -------- --------
(IN THOUSANDS)
--------------
<S> <C> <C> <C> <C> <C>
BALANCE AT DECEMBER 30, 1995............... $ -- $ -- $ -- $ 570 $ 570
Reserves established..................... 730 -- -- -- 730
Usage.................................... (207) -- -- (344) (551)
Decrease due to finalization of
restructuring plan, recorded as a
decrease to cost in excess of net
assets of acquired companies........... -- -- -- (191) (191)
-------- -------- -------- -------- --------
BALANCE AT DECEMBER 28, 1996............... 523 -- -- 35 558
Reserves established..................... -- -- 150 23 173
Usage.................................... (265) -- (67) (58) (390)
Decrease due to finalization of
restructuring plan, recorded as a
decrease to cost in excess of net
assets of acquired companies........... (147) -- (8) -- (155)
-------- -------- -------- -------- --------
BALANCE AT JANUARY 3, 1998................. 111 -- 75 -- 186
Reserves established..................... -- 149 -- -- 149
Usage.................................... (111) (119) -- -- (230)
Decrease due to finalization of
restructuring plan, recorded as a
decrease to cost in excess of net
assets of acquired companies........... -- -- (75) -- (75)
-------- -------- -------- -------- --------
BALANCE AT JANUARY 2, 1999................. -- 30 -- -- 30
(UNAUDITED)
Reserves established..................... -- 39 -- -- 39
Usage.................................... -- (63) -- -- (63)
-------- -------- -------- -------- --------
BALANCE AT JULY 3, 1999.................... $ -- $ 6 $ -- $ -- $ 6
======== ======== ======== ======== ========
</TABLE>
F-15
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
3. ACQUISITIONS AND DISPOSITIONS (CONTINUED)
A summary of the changes in accrued acquisition expenses for the abandonment
of excess facilities follows:
<TABLE>
<CAPTION>
IMAGING AND
INSPECTION TEMPERATURE
SEGMENT CONTROL
------------------- SEGMENT
TOPO- -----------
KEVEX METRIX NESLAB OTHER TOTAL
-------- -------- ----------- -------- --------
(IN THOUSANDS)
--------------
<S> <C> <C> <C> <C> <C>
BALANCE AT DECEMBER 30, 1995............... $ -- $ -- $ -- $ 989 $ 989
Reserves established..................... 377 -- -- 1 378
Usage.................................... (335) -- -- (700) (1,035)
Decrease due to finalization of
restructuring plan, recorded as a
decrease to cost in excess of net
assets of acquired companies........... -- -- -- (114) (114)
-------- -------- -------- -------- --------
BALANCE AT DECEMBER 28, 1996............... 42 -- -- 176 218
Reserves established..................... -- -- 588 -- 588
Usage.................................... (42) -- -- (85) (127)
Decrease due to finalization of
restructuring plan, recorded as a
decrease to cost in excess of net
assets of acquired companies........... -- -- (135) (91) (226)
Currency translation..................... -- -- (53) -- (53)
-------- -------- -------- -------- --------
BALANCE AT JANUARY 3, 1998................. -- -- 400 -- 400
Reserves established..................... -- 602 -- -- 602
Usage.................................... -- (237) (213) -- (450)
Decrease due to finalization of
restructuring plan, recorded as a
decrease to cost in excess of net
assets of acquired companies........... -- -- (166) -- (166)
Currency translation..................... -- -- 30 -- 30
-------- -------- -------- -------- --------
BALANCE AT JANUARY 2, 1999................. -- 365 51 -- 416
(UNAUDITED)
Reserves established..................... -- 207 -- -- 207
Usage.................................... -- (407) (40) -- (447)
Currency translation..................... -- -- (5) -- (5)
-------- -------- -------- -------- --------
BALANCE AT JULY 3, 1999.................... $ -- $ 165 $ 6 $ -- $ 171
======== ======== ======== ======== ========
</TABLE>
The increase in accrued acquisition expenses in 1996 primarily related to
severance across all functions at the Imaging and Inspection segment's Kevex
Instruments subsidiary and relocation of its California sales and service office
to another California facility and the closure of its Japan sales and service
office. The increase in accrued acquisition expenses in 1997 principally related
to lease costs at the Temperature Control segment's NESLAB Instruments
subsidiary's Netherlands facility, which was abandoned, and severance across all
functions at this business. The increase in accrued acquisition expenses in 1998
and 1999 principally related to cancellation of operating leases at the Imaging
and Inspection segment's TopoMetrix subsidiary's sales and services office in
Germany and at its manufacturing facility in
F-16
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
3. ACQUISITIONS AND DISPOSITIONS (CONTINUED)
California, both of which were closed. In addition, the increase represented
severance across all functions at this business.
Unresolved matters at July 3, 1999, primarily included completion of
abandonment of excess facilities for TopoMetrix. Accrued acquisition expenses
are included in other accrued expenses in the accompanying balance sheet.
Based on unaudited data, the following table presents selected financial
information for the Company, NESLAB, PSI, and the Kevex businesses, on a pro
forma basis, assuming that the Company and these acquired businesses had been
combined since the beginning of 1996. The effect of the acquisitions not
included in the pro forma data was not material to the Company's results of
operations.
<TABLE>
<CAPTION>
1997 1996
--------- ---------
(IN THOUSANDS EXCEPT
PER SHARE AMOUNTS)
<S> <C> <C>
Revenues................................................ $210,412 $202,813
Net Income.............................................. 3,736 3,280
Earnings per Share:
Basic................................................. .25 .22
Diluted............................................... .24 .21
</TABLE>
The pro forma results are not necessarily indicative of future operations or
the actual results that would have occurred had the acquisitions of NESLAB, PSI,
and the Kevex businesses been made at the beginning of 1996.
In 1996, the Company finalized negotiations with the former owner of Gould
Instrument Systems, Inc. in connection with amounts claimed by the Company for
the discontinuance of the Acqulab product line, which was sold to the Company as
part of the 1995 purchase of Gould. Of the $1,970,000 settlement received,
$1,103,000 related to a reduction of the purchase price principally for the
unrealized earning potential of the Acqulab product line, resulting in a
reduction of cost in excess of net assets of acquired companies in 1996. The
remaining $867,000 related to a reimbursement of expenses incurred subsequent to
the acquisition of Gould for the ongoing development of Acqulab. This amount is
classified as other nonrecurring income in the accompanying 1996 statement of
income.
DISPOSITIONS
In January 1998, the Company's Nicolet Imaging Systems division sold its
security screening product line to OSI Systems, Inc. for $750,000 in cash for a
nominal loss. The product line represented less than 1.0% of the Company's
revenues. During 1998, the Company sold real estate for a gain of $106,000.
In December 1997, the Company sold its Linac business to SteriGenics
International, Inc. for $4,980,000 in cash and 109,607 shares of SteriGenics
common stock valued at $2,056,000, resulting in a gain of $2,210,000. The Linac
business is an electron beam radiation business that offers contract
sterilization services. The Company sold its shares of SteriGenics common stock
in 1998 and realized a gain of $713,000.
F-17
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
4. RESTRUCTURING COSTS
During 1998, the Company recorded restructuring and related costs of
$5,399,000. Restructuring costs of $4,320,000, which were accounted for in
accordance with EITF 94-3, consist of $3,712,000 related to severance costs for
259 employees across all functions and $608,000 related primarily to
facility-closing costs. The charge for facility-closing costs includes $490,000
for write-downs of related fixed assets. In addition, the Company recorded an
inventory write-down totaling $1,079,000 related to the discontinuation of
certain underperforming products, which is included in cost of revenues in the
accompanying 1998 statement of income. As of January 2, 1999, the Company had
terminated 182 employees and had expended $1,371,000 of the established
reserves. During the first six months of 1999, the Company terminated 36
additional employees and recorded additional restructuring costs of $875,000.
Such costs consist of $265,000 related to severance costs for nine employees at
a foreign sales office, $201,000 for facility-closing costs, and $409,000
related to certain business relocation and related costs.
In connection with the Company's restructuring activities, the Company
expects to incur approximately $200,000 of additional costs which, pursuant to
the requirements of EITF 94-3, are not permitted as charges until incurred.
These additional costs primarily include costs for certain employee and business
relocation and related costs. The Company plans to complete implementation of
its restructuring plan in the third quarter of 1999.
In 1997, the Company's Gould subsidiary incurred a $953,000 restructuring
charge, related primarily to severance costs for 40 employees terminated during
1997. Accrued restructuring costs of $244,000 in the accompanying 1997 balance
sheet relates to these actions and was expended during 1998. In addition, in
1997 the Company's Nicolet Imaging Systems division recorded an inventory
write-down of $0.8 million, related primarily to the discontinuation of an
underperforming product, which is included in cost of revenues in the
accompanying 1997 statement of income.
In 1996, Gould incurred $1,038,000 in connection with a restructuring plan,
which included the termination of approximately 40 employees.
F-18
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
4. RESTRUCTURING COSTS (CONTINUED)
The Company recorded charges for its restructuring plans as follows:
<TABLE>
<CAPTION>
ABANDONMENT
OF EXCESS
SEVERANCE FACILITIES OTHER TOTAL
--------- ----------- -------- --------
(IN THOUSANDS)
--------------
<S> <C> <C> <C> <C>
1996 RESTRUCTURING PLAN
Costs incurred in 1996 (a)....................... $ 1,038 $ -- $ -- $ 1,038
1996 Usage....................................... (14) -- -- (14)
-------- -------- -------- --------
BALANCE AT DECEMBER 28, 1996..................... 1,024 -- -- 1,024
1997 Usage....................................... (1,024) -- -- (1,024)
-------- -------- -------- --------
BALANCE AT JANUARY 3, 1998....................... $ -- $ -- $ -- $ --
======== ======== ======== ========
1997 RESTRUCTURING PLAN
Costs incurred in 1997 (b)....................... $ 953 $ -- $ -- $ 953
1997 Usage....................................... (709) -- -- (709)
-------- -------- -------- --------
BALANCE AT JANUARY 3, 1998....................... 244 -- -- 244
1998 Usage....................................... (244) -- -- (244)
-------- -------- -------- --------
BALANCE AT JANUARY 2, 1999....................... $ -- $ -- $ -- $ --
======== ======== ======== ========
1998 RESTRUCTURING PLAN
Costs incurred in 1998 (c)....................... $ 3,712 $ 118 $ -- $ 3,830
1998 Usage....................................... (1,253) (118) -- (1,371)
-------- -------- -------- --------
BALANCE AT JANUARY 2, 1999....................... 2,459 -- -- 2,459
(UNAUDITED)
Costs incurred in 1999 (d)....................... 265 201 409 875
1999 Usage....................................... (1,773) (201) (409) (2,383)
Currency translation............................. (44) -- -- (44)
-------- -------- -------- --------
BALANCE AT JULY 3, 1999.......................... $ 907 $ -- $ -- $ 907
======== ======== ======== ========
</TABLE>
- ------------------------
(a) Reflects restructuring costs recorded by the Test and Measurement segment.
(b) Reflects restructuring costs recorded by the Test and Measurement segment.
Excludes noncash inventory write-down of $0.8 million included in cost of
revenues and recorded by the Imaging and Inspection segment.
(c) Reflects restructuring costs of $1.2 million, $2.4 million, and
$0.2 million recorded by the Imaging and Inspection, Test and Measurement,
and Temperature Control segments, respectively. Excludes noncash inventory
write-down of $1.1 million included in cost of revenues, of which
$0.5 million was recorded by the Imaging and Inspection segment and
$0.6 million was recorded by the Test and Measurement segment. Excludes
provision of $0.5 million for an asset write-down, of which $0.4 million was
recorded by the Imaging and Inspection segment and $0.1 million was recorded
by the Test and Measurement segment.
(d) Reflects restructuring costs recorded by the Imaging and Inspection segment.
F-19
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
5. EMPLOYEE BENEFIT PLANS
STOCK-BASED COMPENSATION PLANS
STOCK OPTION PLANS
The Company has stock-based compensation plans for its key employees,
directors, and others, which permit the grant of a variety of stock and
stock-based awards as determined by the human resources committee of the
Company's Board of Directors (the Board Committee), including restricted stock,
stock options, stock bonus shares, or performance-based shares. The option
recipients and the terms of options granted under these plans are determined by
the Board Committee. As of year-end 1998, only nonqualified stock options have
been awarded under these plans. Generally, options granted to date are
exercisable immediately, but are subject to certain transfer restrictions and
the right of the Company to repurchase shares issued upon exercise of the
options at the exercise price, upon certain events. The restrictions and
repurchase rights generally lapse ratably over a one- to ten-year period,
depending on the term of the option, which generally ranges from five to twelve
years. Nonqualified stock options may be granted at any price determined by the
Board Committee, although incentive stock options must be granted at not less
than the fair market value of the Company's common stock on the date of grant.
To date, all options have been granted at fair market value. The Company also
has a directors' stock option plan that provides for the grant of stock options
to outside directors pursuant to a formula approved by the Company's
shareholders. Options granted under this plan have the same general terms as
options granted under the stock-based compensation plans described above, except
that the restrictions and repurchase rights generally lapse ratably over a
four-year period and the option term is five years. In addition to the Company's
stock-based compensation plans, certain officers and key employees may also
participate in the stock-based compensation plans of Thermo Electron and Thermo
Instrument.
In November 1998, the Company's employees, excluding its officers and
directors, were offered the opportunity to exchange previously granted options
to purchase shares of Company common stock for an amount of options equal to
half of the number of options previously held, exercisable at a price equal to
the fair market value at the time of the exchange offer. Holders of options to
acquire 87,000 shares at a weighted average exercise price of $14.50 per share
elected to participate in this exchange and, as a result, received options to
purchase 43,500 shares of Company common stock at $11.41 per share, which are
included in the 1998 grants in the table below. The other terms of the new
options are the same as the exchanged options except that the holders may not
sell shares purchased pursuant to such new options for six months from the
exchange date. The options exchanged were canceled by the Company.
F-20
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
5. EMPLOYEE BENEFIT PLANS (CONTINUED)
A summary of the Company's stock option activity is:
<TABLE>
<CAPTION>
1998 1997 1996
-------------------- ------------------- -------------------
WEIGHTED WEIGHTED WEIGHTED
NUMBER AVERAGE NUMBER AVERAGE NUMBER AVERAGE
OF EXERCISE OF EXERCISE OF EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
--------- -------- -------- -------- -------- --------
(SHARES IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Options Outstanding, Beginning of Year... 1,256 $11.23 971 $12.10 862 $11.32
Issued upon acquisition of PSI......... -- -- 145 3.07 -- --
Granted................................ 370 10.73 374 10.46 183 15.26
Exercised.............................. (14) 3.44 (105) 4.20 (8) 10.00
Forfeited.............................. (306) 12.17 (129) 12.02 (66) 10.89
Canceled due to exchange............... (87) 14.50 -- -- -- --
----- ----- -----
Options Outstanding, End of Year......... 1,219 $10.70 1,256 $11.23 971 $12.10
===== ====== ===== ====== ===== ======
Options Exercisable...................... 1,212 $10.74 1,238 $11.35 971 $12.10
===== ====== ===== ====== ===== ======
Options Available for Grant.............. 388 172 121
===== ===== =====
</TABLE>
A summary of the status of the Company's stock options at January 2, 1999,
is:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING
--------------------------------------------
WEIGHTED WEIGHTED
NUMBER AVERAGE AVERAGE
OF REMAINING EXERCISE
RANGE OF EXERCISE PRICES SHARES CONTRACTUAL LIFE PRICE
- ------------------------ -------------- ---------------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
$ 2.55--$ 6.20.......................... 36 6.1 years $ 3.37
6.21-- 9.85.......................... 163 6.8 years 9.50
9.86-- 13.50.......................... 847 7.1 years 10.42
13.51-- 17.15.......................... 173 6.5 years 14.73
-----
$ 2.55--$17.15.......................... 1,219 6.9 years $10.70
=====
</TABLE>
The information disclosed above for options outstanding at January 2, 1999,
does not differ materially for options exercisable.
EMPLOYEE STOCK PURCHASE PROGRAM
Effective November 1, 1996, substantially all of the Company's full-time
U.S. employees are eligible to participate in an employee stock purchase program
sponsored by the Company and Thermo Electron, under which employees can purchase
shares of the Company's and Thermo Electron's common stock. Prior to November 1,
1996, the program was sponsored by Thermo Instrument and Thermo Electron. Prior
to the 1998 program year, the applicable shares of common stock could be
purchased at the end of a 12-month period at 95% of the fair market value at the
beginning of the period, and the shares purchased were subject to a six-month
resale restriction. Effective November 1, 1998, the applicable shares of common
stock may be purchased at 85% of the lower of the fair market value at the
beginning or end of the plan year, and the shares purchased are subject to a
one-year resale restriction. Shares are purchased
F-21
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
5. EMPLOYEE BENEFIT PLANS (CONTINUED)
through payroll deductions of up to 10% of each participating employee's gross
wages. No shares were issued under this program during 1998. During 1997, the
Company issued 9,852 shares of its common stock under this program.
PRO FORMA STOCK-BASED COMPENSATION EXPENSE
In October 1995, the Financial Accounting Standards Board issued SFAS No.
123, "Accounting for Stock-based Compensation," which sets forth a fair-value
based method of recognizing stock-based compensation expense. As permitted by
SFAS No. 123, the Company has elected to continue to apply APB No. 25 to account
for its stock-based compensation plans. Had compensation cost for awards granted
under the Company's stock-based compensation plans been determined based on the
fair value at the grant dates consistent with the method set forth under SFAS
No. 123, the effect on the Company's net income and earnings per share would
have been:
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
(IN THOUSANDS EXCEPT
PER SHARE AMOUNTS)
<S> <C> <C> <C>
Net Income:
As reported....................................... $1,825 $5,848 $6,617
Pro forma......................................... 1,070 5,343 6,277
Basic Earnings per Share:
As reported....................................... .12 .40 .53
Pro forma......................................... .07 .36 .50
Diluted Earnings per Share:
As reported....................................... .12 .39 .53
Pro forma......................................... .07 .36 .50
</TABLE>
Because the method prescribed by SFAS No. 123 has not been applied to
options granted prior to January 1, 1995, the resulting pro forma compensation
expense may not be representative of the amount to be expected in future years.
Pro forma compensation expense for options granted is reflected over the vesting
period; therefore, future pro forma compensation expense may be greater as
additional options are granted.
The weighted average fair value per share of options granted was $4.04,
$3.74, and $5.80 in 1998, 1997, and 1996, respectively. The fair value of each
option grant was estimated on the grant date using the Black-Scholes
option-pricing model with the following weighted-average assumptions:
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- ---------
<S> <C> <C> <C>
Volatility.................................... 28% 28% 26%
Risk-free Interest Rate....................... 5.3% 5.9% 6.6%
Expected Life of Options...................... 5.6 years 5.0 years 5.4 years
</TABLE>
The Black-Scholes option-pricing model was developed for use in estimating
the fair value of traded options which have no vesting restrictions and are
fully transferable. In addition, option-pricing models require the input of
highly subjective assumptions, including expected stock price volatility.
Because the Company's employee stock options have characteristics significantly
different from those of traded options, and because changes in the subjective
input assumptions can materially affect the fair value estimate, in
F-22
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
5. EMPLOYEE BENEFIT PLANS (CONTINUED)
management's opinion, the existing models do not necessarily provide a reliable
single measure of the fair value of its employee stock options.
401(K) SAVINGS PLANS
Substantially all of the Company's full-time U.S. employees are eligible to
participate in 401(k) savings plans. Contributions to the 401(k) savings plans
are made by both the employee and the Company. Company contributions are based
upon the level of employee contributions. For these plans, the Company
contributed and charged to expense $1,350,000, $1,427,000, and $689,000 in 1998,
1997, and 1996, respectively.
6. INCOME TAXES
The components of income before provision for income taxes are:
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Domestic......................................... $ 2,306 $10,719 $ 8,969
Foreign.......................................... 1,346 (319) 1,918
------- ------- -------
$ 3,652 $10,400 $10,887
======= ======= =======
</TABLE>
The components of the provision for income taxes are:
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Currently Payable:
Federal........................................ $ 2,207 $ 3,834 $ 3,427
State.......................................... 529 600 774
Foreign........................................ 523 158 865
------- ------- -------
3,259 4,592 5,066
------- ------- -------
Net Deferred (Prepaid):
Federal........................................ (1,248) (112) (608)
State.......................................... (280) (24) (129)
Foreign........................................ 96 96 (59)
------- ------- -------
(1,432) (40) (796)
------- ------- -------
$ 1,827 $ 4,552 $ 4,270
======= ======= =======
</TABLE>
The Company receives a tax deduction upon exercise of nonqualified stock
options by employees for the difference between the exercise price and the
market price of the underlying common stock on the date of exercise. The
provision for income taxes that is currently payable does not reflect $114,000,
$304,000, and $382,000 of such benefits that have been allocated to capital in
excess of par value in 1998, 1997, and 1996, respectively. In addition, the
provision for income taxes that is currently payable does not reflect $1,024,000
of tax benefits used to reduce cost in excess of net assets of acquired
companies in 1996.
F-23
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
6. INCOME TAXES (CONTINUED)
The provision for income taxes in the accompanying statement of income
differs from the provision calculated by applying the statutory federal income
tax rate of 34% to income before provision for income taxes due to:
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Provision for Income Taxes at Statutory Rate........ $1,242 $3,536 $3,702
Increases (Decreases) Resulting from:
State income taxes, net of federal tax............ 164 380 426
Foreign tax rate and tax law differential......... 163 362 154
Amortization of cost in excess of net assets of
acquired companies.............................. 841 685 146
Tax benefit of foreign sales corporation.......... (362) (295) (268)
Other, net........................................ (221) (116) 110
------ ------ ------
$1,827 $4,552 $4,270
====== ====== ======
</TABLE>
Prepaid and deferred income taxes in the accompanying balance sheet consist
of:
<TABLE>
<CAPTION>
1998 1997
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Prepaid Income Taxes:
Tax loss carryforwards................................... $10,133 $9,052
Reserves and accruals.................................... 5,439 4,152
Inventory basis difference............................... 4,749 3,185
------- ------
20,321 16,389
Less: Valuation allowance................................ 10,133 9,052
------- ------
$10,188 $7,337
======= ======
Deferred Income Taxes:
Fixed and intangible assets.............................. $ 1,651 $ 356
======= ======
</TABLE>
At year-end 1998, the Company had foreign and federal tax loss carryforwards
of $23,497,000 and $6,088,000, respectively. The valuation allowance relates to
uncertainty surrounding the realization of the tax loss carryforwards, for which
realization is limited to the future income of certain subsidiaries. The federal
tax loss carryforwards expire in the years 2008 through 2010. Foreign tax loss
carryforwards of $313,000 expire in 2006, while the remainder do not expire. Any
resulting benefit from the loss carryforwards will first be used to reduce cost
in excess of net assets of acquired companies, with any remaining benefit used
to reduce other acquired intangible assets.
A provision has not been made for U.S. or additional foreign taxes on
$5,695,000 of undistributed earnings of foreign subsidiaries that could be
subject to taxation if remitted to the U.S. because the Company plans to keep
these amounts permanently reinvested overseas.
F-24
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
7. COMMITMENTS AND CONTINGENCIES
OPERATING LEASES
The Company leases portions of its office and operating facilities under
various operating lease arrangements. The accompanying statement of income
includes expenses from operating leases of $2,333,000, $2,171,000, and
$2,818,000 in 1998, 1997, and 1996, respectively, net of sublease income of
$847,000 and $893,000 in 1998 and 1997, respectively. Future minimum payments
due under noncancelable operating leases at January 2, 1999, were $2,093,000 in
1999; $1,937,000 in 2000; $1,589,000 in 2001; $1,438,000 in 2002; $1,312,000 in
2003; and $1,580,000 in 2004 and thereafter. Total future minimum lease payments
are $9,949,000 and have not been reduced by minimum sublease rental income of
$3,744,000 due through 2004 and thereafter under noncancelable operating
subleases. See Note 8 for office and manufacturing space leased from related
parties.
CONTINGENCIES
The Company has received correspondence alleging that certain of its
products infringe patents owned by third parties, though no lawsuits have been
filed. The Company does not believe that its products infringe the intellectual
property rights of these parties; however, given the inherent uncertainty of
dispute resolution, there can be no assurance that the outcome of any such
lawsuit, if filed, would not result in a material adverse effect on the
Company's results of operations or financial position.
8. RELATED-PARTY TRANSACTIONS
CORPORATE SERVICES AGREEMENT
The Company and Thermo Electron have a corporate services agreement under
which Thermo Electron's corporate staff provides certain administrative
services, including certain legal advice and services, risk management, certain
employee benefit administration, tax advice and preparation of tax returns,
centralized cash management, and certain financial and other services, for which
the Company currently pays Thermo Electron annually an amount equal to 0.8% of
the Company's revenues. In 1997 and 1996, the Company paid an amount equal to
1.0% of the Company's revenues. For these services, the Company was charged
$1,528,000, $1,989,000, and $1,232,000 in 1998, 1997, and 1996, respectively.
The fee is reviewed and adjusted annually by mutual agreement of the parties.
Management believes that the service fee charged by Thermo Electron is
reasonable and that such fees are representative of the expenses the Company
would have incurred on a stand-alone basis. The corporate services agreement is
renewed annually but can be terminated upon 30 days' prior notice by the Company
or upon the Company's withdrawal from the Thermo Electron Corporate Charter (the
Thermo Electron Corporate Charter defines the relationship among Thermo Electron
and its majority-owned subsidiaries). For additional items such as employee
benefit plans, insurance coverage, and other identifiable costs, Thermo Electron
charges the Company based upon costs attributable to the Company.
OPERATING LEASES
In addition to the operating leases discussed in Note 7, the Company leases
certain office and manufacturing space from subsidiaries of Thermo Instrument
under two leases expiring in 2000 and 2001. The accompanying statement of income
includes expenses from these operating leases of $899,000, $602,000, and
$208,000 in 1998, 1997, and 1996, respectively. At January 2, 1999, future
minimum
F-25
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
8. RELATED-PARTY TRANSACTIONS (CONTINUED)
payments due under these leases are $906,000 in 1999, $739,000 in 2000, and
$236,000 in 2001. Total future minimum lease payments under these leases are
$1,881,000.
OTHER RELATED-PARTY TRANSACTIONS
The Company purchases and sells products and services in the ordinary course
of business with other companies affiliated with Thermo Electron. Sales of
products to such affiliated companies totaled $1,215,000, $825,000, and $240,000
in 1998, 1997, and 1996, respectively. Purchases of products and services from
such affiliated companies totaled $2,013,000, $2,226,000, and $1,310,000 in
1998, 1997, and 1996, respectively. During 1998, the Company sold a product line
to Thermo Optek for $125,000.
REPURCHASE AGREEMENT
The Company invests excess cash in repurchase agreements with Thermo
Electron as discussed in Notes 1 and 16.
SHORT- AND LONG-TERM OBLIGATIONS
The accompanying balance sheet includes the following amounts borrowed from
Thermo Instrument and Thermo Electron to finance the acquisitions of certain
companies (Note 3):
<TABLE>
<CAPTION>
1998 1997
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Promissory Notes to Thermo Electron, Due:
August 1998............................................. $ -- $15,000
March 1999.............................................. 10,000 10,000
July 1999............................................... 50,000 50,000
Promissory Note to Thermo Instrument, Due September
2001.................................................... 7,300 7,300
------- -------
$67,300 $82,300
======= =======
</TABLE>
These notes bear interest at the 90-day Commercial Paper Composite Rate plus
25 basis points, set at the beginning of each quarter. The interest rate for the
notes outstanding at year-end 1998 and 1997 was 5.36% and 5.76%, respectively.
9. LINES OF CREDIT
Unused amounts available under outstanding lines of credit were $3,345,000
and $3,249,000 at year-end 1998 and 1997, respectively. Borrowings under lines
of credit are guaranteed by Thermo Electron or Thermo Instrument.
10. COMMON STOCK
At January 2, 1999, the Company had reserved 1,672,000 unissued shares of
its common stock for possible issuance under stock-based compensation plans.
F-26
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
11. FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company's financial instruments consist primarily of cash and cash
equivalents, accounts receivable, notes payable to Thermo Electron, accounts
payable, due to affiliated companies, long-term obligations due to related
party, and forward foreign exchange contracts. Available-for-sale investments
were carried at fair value in the accompanying 1997 balance sheet (Note 2). The
Company's long-term obligations (Note 8) bear interest at a variable market rate
and, therefore, the carrying amounts approximate fair value. The carrying
amounts of the Company's remaining financial instruments, with the exception of
forward foreign exchange contracts, approximate fair value due to their
short-term nature.
The notional amounts of forward foreign exchange contracts outstanding
totaled $1,519,000 and $2,041,000 at year-end 1998 and 1997, respectively. The
fair value of the Company's forward foreign exchange contracts receivable was
$19,000 and $3,000 at year-end 1998 and 1997, respectively. The fair value of
such contracts is the estimated amount that the Company would receive upon
termination of the contracts, taking into account the change in foreign exchange
rates.
12. BUSINESS SEGMENTS AND GEOGRAPHICAL INFORMATION
The Company organizes and manages its business by functional operating
entity. The Company operates in three segments: Imaging and Inspection,
Temperature Control, and Test and Measurement. In classifying operational
entities into a particular segment, the Company aggregates businesses with
similar economic characteristics, products and services, production processes,
customers, and methods of distribution.
The Company, through its Imaging and Inspection segment, designs,
manufactures, and markets instruments and systems used in the analysis of
material samples by industrial, academic, and government laboratories. Principal
products manufactured by this segment include X-ray microanalysis systems that
analyze the chemical composition of microscopic samples; X-ray sources for
imaging, inspection, analytical, and thickness-gauging applications; X-ray
imaging systems for quality-control inspections; systems for the rework and
repair of printed circuit boards that have failed quality-control inspection;
scanning probe microscopes that measure physical surface properties; and
confocal laser scanning microscopes that create high-resolution
three-dimensional images.
The Temperature Control segment manufactures and markets precision
temperature control systems for analytical, laboratory, industrial, research and
development, laser, and semiconductor applications.
The Test and Measurement segment manufactures data-acquisition systems,
digital oscilloscopes, and recording systems used primarily in product
development and process monitoring settings.
F-27
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
12. BUSINESS SEGMENTS AND GEOGRAPHICAL INFORMATION (CONTINUED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
-------------------
JULY 3, JULY 4,
1999 1998 1998 1997 1996
-------- -------- -------- -------- --------
(UNAUDITED)
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
BUSINESS SEGMENT INFORMATION
Revenues:
Imaging and Inspection........................ $ 41,879 $ 45,113 $ 85,824 $ 91,771 $ 67,711
Temperature Control........................... 24,512 34,545 61,198 56,288 --
Test and Measurement.......................... 18,218 22,467 43,995 50,841 55,488
-------- -------- -------- -------- --------
$ 84,609 $102,125 $191,017 $198,900 $123,199
======== ======== ======== ======== ========
Income Before Provision for Income Taxes:
Imaging and Inspection........................ $ 756 $ 3,056 $ 1,580 $ 7,422 $ 9,219
Temperature Control........................... 1,378 4,498 7,070 6,698 --
Test and Measurement.......................... 1,145 1,184 (967) 2,713 3,942
Corporate (a)................................. (995) (1,095) (1,740) (2,908) (2,436)
-------- -------- -------- -------- --------
Total operating income........................ 2,284 7,643 5,943 13,925 10,725
Interest and other income (expense), net...... (1,213) (1,603) (2,291) (3,525) 162
-------- -------- -------- -------- --------
$ 1,071 $ 6,040 $ 3,652 $ 10,400 $ 10,887
======== ======== ======== ======== ========
Total Assets:
Imaging and Inspection........................ $110,695 $104,026 $ 84,547
Temperature Control........................... 77,356 83,509 --
Test and Measurement.......................... 42,227 43,658 50,926
Corporate (b)................................. 19,604 22,204 17,012
-------- -------- --------
$249,882 $253,397 $152,485
======== ======== ========
Depreciation and Amortization:
Imaging and Inspection........................ $ 3,019 $ 2,896 $ 2,109
Temperature Control........................... 2,469 1,911 --
Test and Measurement.......................... 1,582 1,808 2,384
Corporate..................................... 3 -- --
-------- -------- --------
$ 7,073 $ 6,615 $ 4,493
======== ======== ========
Capital Expenditures:
Imaging and Inspection........................ $ 1,083 $ 1,857 $ 2,215
Temperature Control........................... 477 516 --
Test and Measurement.......................... 621 222 547
Corporate..................................... 18 -- --
-------- -------- --------
$ 2,199 $ 2,595 $ 2,762
======== ======== ========
</TABLE>
F-28
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
12. BUSINESS SEGMENTS AND GEOGRAPHICAL INFORMATION (CONTINUED)
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
GEOGRAPHICAL INFORMATION
Revenues (c):
United States................................. $165,363 $176,717 $ 94,493
Germany....................................... 11,495 12,217 14,673
England....................................... 10,853 12,546 14,260
Other......................................... 29,324 25,393 19,291
Transfers among geographical areas (d)........ (26,018) (27,973) (19,518)
-------- -------- --------
$191,017 $198,900 $123,199
======== ======== ========
Long-lived Assets (e):
United States................................. $ 18,462 $ 20,684 $ 20,361
International................................. 863 2,104 2,190
-------- -------- --------
$ 19,325 $ 22,788 $ 22,551
======== ======== ========
Export Revenues Included in United States
Revenues Above (f)............................ $ 59,413 $ 59,433 $ 36,472
======== ======== ========
</TABLE>
- ------------------------
(a) Primarily general and administrative expenses.
(b) Primarily cash, cash equivalents, and available-for-sale investments.
(c) Revenues are attributed to countries based on selling location.
(d) Transfers among geographical areas are accounted for at prices that are
representative of transactions with unaffiliated parties.
(e) Includes property, plant, and equipment, net, and other long-term tangible
assets.
(f) In general, export revenues are denominated in U.S. dollars.
F-29
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
13. EARNINGS PER SHARE
Basic and diluted earnings per share were calculated as follows:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
-------------------
JULY 3, JULY 4,
1999 1998 1998 1997 1996
-------- -------- -------- -------- --------
(UNAUDITED)
(IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C>
BASIC
Net income..................................... $ 556 $ 3,560 $ 1,825 $ 5,848 $ 6,617
------- ------- ------- ------- -------
Weighted Average Shares........................ 15,338 15,322 15,324 14,694 12,437
------- ------- ------- ------- -------
Basic Earnings per Share....................... $ .04 $ .23 $ .12 $ .40 $ .53
======= ======= ======= ======= =======
DILUTED
Net Income..................................... $ 556 $ 3,560 $ 1,825 $ 5,848 $ 6,617
------- ------- ------- ------- -------
Weighted Average Shares........................ 15,338 15,322 15,324 14,694 12,437
Effect of Stock Options........................ 92 22 30 112 133
------- ------- ------- ------- -------
Weighted Average Shares, as Adjusted........... 15,430 15,344 15,354 14,806 12,570
------- ------- ------- ------- -------
Diluted Earnings per Share..................... $ .04 $ .23 $ .12 $ .39 $ .53
======= ======= ======= ======= =======
</TABLE>
The computation of diluted earnings per share for each period excludes the
effect of assuming the exercise of certain outstanding stock options because the
effect would be antidilutive. As of January 2, 1999, there were 311,075 of such
options outstanding, with exercise prices ranging from $11.03 to $17.15 per
share.
14. COMPREHENSIVE INCOME
During the first quarter of 1998, the Company adopted SFAS No. 130,
"Reporting Comprehensive Income." This pronouncement sets forth requirements for
disclosure of the Company's comprehensive income and accumulated other
comprehensive items. In general, comprehensive income combines net income and
"Other comprehensive items, net," which represents certain amounts that are
reported as components of shareholders' investment in the accompanying balance
sheet, including foreign currency translation adjustments and unrealized net of
tax gains and losses from available-for-sale investments.
Accumulated other comprehensive items in the accompanying balance sheet
consists of:
<TABLE>
<CAPTION>
1998 1997
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Cumulative Translation Adjustment........................... $(623) $(1,035)
Net Unrealized Gain on Available-for-sale Investments....... -- 27
----- -------
$(623) $(1,008)
===== =======
</TABLE>
F-30
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
15. UNAUDITED QUARTERLY INFORMATION
<TABLE>
<CAPTION>
1998 FIRST SECOND THIRD(A) FOURTH
- ---- -------- -------- -------- --------
(IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
Revenues................................................ $53,067 $49,058 $44,052 $44,840
Gross Profit............................................ 22,670 20,624 16,485 20,323
Net Income (Loss)....................................... 2,072 1,488 (2,503) 768
Basic and Diluted Earnings (Loss) per Share............. .14 .10 (.16) .05
<CAPTION>
1997 FIRST(B) SECOND THIRD FOURTH(C)
- ---- -------- -------- -------- ---------
(IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
Revenues................................................ $37,177 $49,692 $52,271 $59,760
Gross Profit............................................ 16,275 21,702 20,249 24,927
Net Income.............................................. 1,188 1,337 705 2,618
Basic and Diluted Earnings per Share.................... .09 .09 .05 .17
</TABLE>
- ------------------------
(a) Reflects a $5.4 million pretax charge for restructuring and related costs.
(b) Reflects the March 1997 acquisitions of NESLAB and PSI.
(c) Reflects a $2.2 million gain from the sale of the Company's Linac business.
16. SUBSEQUENT EVENTS
PROPOSED MERGER
On May 21, 1999, the Company entered into a definitive agreement and plan of
merger with Thermo Instrument pursuant to which Thermo Instrument would acquire
all of the outstanding shares of Company common stock held by shareholders other
than Thermo Instrument and Thermo Electron in exchange for $16.00 in cash per
share, without interest. Following the merger, the Company's common stock would
cease to be publicly traded. The Board of Directors of the Company unanimously
approved the merger agreement based on a recommendation by a special committee
of the Board of Directors, consisting solely of outside directors of the
Company. The special committee's recommendation was based on extensive
negotiations, related to the pricing and terms of this proposed transaction,
with representatives of Thermo Instrument. The completion of this merger is
subject to certain conditions, including shareholder approval of the merger
agreement and the completion of review by the Securities and Exchange Commission
of certain required filings. Thermo Electron and Thermo Instrument intend to
vote all of their shares of common stock of the Company in favor of approval of
the merger agreement and, therefore, approval of the merger agreement is
assured. This merger is expected to be completed in the fourth quarter of 1999.
CASH MANAGEMENT ARRANGEMENT
Effective June 1, 1999, the Company and Thermo Electron commenced use of a
new domestic cash management arrangement. Under the new arrangement, amounts
advanced to Thermo Electron by the Company for domestic cash management purposes
bear interest at the 30-day Dealer Commercial Paper Rate (DCP Rate) plus 50
basis points, set at the beginning of each month. Thermo Electron is
contractually required to maintain cash, cash equivalents, and/or immediately
available bank lines of credit equal to at least 50% of all funds invested under
this cash management arrangement by all Thermo Electron subsidiaries other than
wholly owned subsidiaries. The Company has the contractual right to withdraw its
F-31
<PAGE>
THERMOSPECTRA CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONCLUDED)
16. SUBSEQUENT EVENTS (CONTINUED)
funds invested in the cash management arrangement upon 30 days' prior notice.
Amounts invested in this arrangement are included in "advance to affiliate" in
the accompanying balance sheet.
In addition, under the new domestic cash management arrangement, amounts
borrowed from Thermo Electron by the Company for domestic cash management
purposes bear interest at the 30-day DCP Rate plus 150 basis points, set at the
beginning of each month. The Company has no borrowings under this arrangement as
of July 3, 1999.
F-32
<PAGE>
APPENDIX A
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
THERMO INSTRUMENT SYSTEMS INC.
TS ACQUISITION CORPORATION
AND
THERMOSPECTRA CORPORATION
DATED AS OF MAY 21, 1999
A-1
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE I THE MERGER............................................... A-4
1.1. The Merger.................................................. A-4
1.2. Effective Time; Closing..................................... A-4
1.3. Effect of the Merger........................................ A-5
1.4. Certificate of Incorporation; Bylaws........................ A-5
1.5. Directors and Officers...................................... A-5
1.6. Effect on Capital Stock..................................... A-5
1.7. Surrender of Certificates................................... A-6
1.8. No Further Ownership Rights in ThermoSpectra Common Stock... A-7
1.9. Lost, Stolen or Destroyed Certificates...................... A-7
1.10. Dissenting Shares........................................... A-7
1.11. Taking of Necessary Action; Further Action.................. A-7
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THERMOSPECTRA......... A-8
2.1. Organization of ThermoSpectra............................... A-8
2.2. ThermoSpectra Capital Structure............................. A-8
2.3. Authority................................................... A-8
2.4. Board Approval.............................................. A-9
2.5. Fairness Opinion............................................ A-9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THERMO INSTRUMENT AND
MERGER SUB......................................................... A-9
3.1. Organization................................................ A-9
3.2. Authority................................................... A-9
3.3. Financial Resources......................................... A-10
ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME..................... A-10
4.1. Conduct of Business by ThermoSpectra........................ A-10
4.2. Certain Actions by ThermoSpectra............................ A-10
ARTICLE V ADDITIONAL AGREEMENTS.................................... A-11
5.1. Schedule 13E-3; Proxy Statement; Other Filings.............. A-11
5.2. Meeting of ThermoSpectra Stockholders....................... A-12
5.3. Access to Information....................................... A-13
5.4. Public Disclosure........................................... A-13
5.5. Legal Requirements.......................................... A-13
5.6. Notification of Certain Matters............................. A-13
5.7. Best Efforts and Further Assurances......................... A-13
5.8. Stock Option and Employee Stock Purchase Plans.............. A-13
5.9. Thermo Instrument Form S-8.................................. A-14
5.10. Indemnification; Insurance.................................. A-14
5.11. Deferred Compensation Plan.................................. A-15
ARTICLE VI CONDITIONS TO THE MERGER................................ A-15
6.1. Conditions to Obligations of Each Party to Effect the
Merger...................................................... A-15
6.2. Additional Conditions to Obligations of ThermoSpectra....... A-15
6.3. Additional Conditions to the Obligations of Thermo
Instrument and Merger Sub................................... A-16
</TABLE>
A-2
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER...................... A-16
7.1. Termination................................................. A-16
7.2. Notice of Termination; Effect of Termination................ A-17
7.3. Fees and Expenses........................................... A-17
7.4. Amendment................................................... A-17
7.5. Extension; Waiver........................................... A-17
ARTICLE VIII GENERAL PROVISIONS.................................... A-18
8.1. Non-Survival of Representations and Warranties.............. A-18
8.2. Notices..................................................... A-18
8.3. Counterparts................................................ A-18
8.4. Entire Agreement............................................ A-18
8.5. Severability................................................ A-19
8.6. Other Remedies; Specific Performance........................ A-19
8.7. Governing Law............................................... A-19
8.8. Assignment.................................................. A-19
</TABLE>
A-3
<PAGE>
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Agreement") dated as of May 21, 1999
is by and among Thermo Instrument Systems Inc., a Delaware corporation ("Thermo
Instrument"), TS Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of Thermo Instrument ("Merger Sub"), and ThermoSpectra
Corporation, a Delaware corporation ("ThermoSpectra").
RECITALS
A. Thermo Instrument and its parent, Thermo Electron Corporation ("Thermo
Electron"), own approximately 82% and 10%, respectively, of the outstanding
shares of common stock, par value $.01 per share, of ThermoSpectra (the
"ThermoSpectra Common Stock"), and Thermo Instrument desires to acquire the
remaining outstanding shares of ThermoSpectra Common Stock.
B. Upon the terms and subject to the conditions of this Agreement and in
accordance with the Delaware General Corporation Law (the "DGCL"), Thermo
Instrument and ThermoSpectra will enter into a business combination transaction
pursuant to which Merger Sub will merge with and into ThermoSpectra (the
"Merger").
C. The Board of Directors of Thermo Instrument (i) has determined that the
Merger is consistent with and in furtherance of the long-term business strategy
of Thermo Instrument, and (ii) has approved this Agreement, the Merger and the
other transactions contemplated by this Agreement.
D. The Board of Directors of ThermoSpectra, on the recommendation of a
special committee of the Board of Directors consisting of all directors of
ThermoSpectra that are not (a) officers or directors of Thermo Instrument or
Thermo Electron or (b) officers of ThermoSpectra (the "Special Committee") that
this Agreement, including the Exchange Price (as defined below), is fair to, and
in the best interests of, the stockholders of ThermoSpectra (other than Thermo
Instrument and Thermo Electron), (i) has determined that the Merger is
consistent with and in furtherance of the long-term business strategy of
ThermoSpectra and fair to, and in the best interests of, ThermoSpectra and its
stockholders, (ii) has approved and deemed advisable this Agreement, the Merger
and the other transactions contemplated by this Agreement and (iii) has
recommended the approval of this Agreement by the stockholders of ThermoSpectra.
E. Thermo Instrument, ThermoSpectra 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
ThermoSpectra, the separate corporate existence of Merger Sub shall cease and
ThermoSpectra shall continue as the surviving corporation. ThermoSpectra 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 parties hereto 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
A-4
<PAGE>
the "Effective Date") as soon 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 second 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) ThermoSpectra shall deliver to Thermo Instrument the various
certificates and instruments required under Article VI, (ii) Thermo Instrument
and Merger Sub shall deliver to ThermoSpectra the various certificates and
instruments required under Article VI and (iii) ThermoSpectra and Merger Sub
shall execute and file the Certificate of Merger with the Secretary of State of
the State of Delaware.
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 ThermoSpectra and Merger Sub shall vest in the Surviving Corporation, and all
debts, liabilities and duties of ThermoSpectra and Merger Sub shall become the
debts, liabilities and duties of the Surviving Corporation.
1.4. CERTIFICATE OF INCORPORATION; BYLAWS.
(a) At the Effective Time, the Certificate of Incorporation of
ThermoSpectra, 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) The Bylaws of ThermoSpectra, 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 ThermoSpectra 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 ThermoSpectra immediately prior to the
Effective Time shall be the officers of the Surviving Corporation, to serve
until their successors are duly elected or appointed or 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, ThermoSpectra or the
holders of any of the following securities:
(a) CONVERSION OF THERMOSPECTRA COMMON STOCK. Each share of
ThermoSpectra Common Stock issued and outstanding immediately prior to the
Effective Time (other than any shares of ThermoSpectra Common Stock held in
the treasury of ThermoSpectra, by Thermo Instrument or Thermo Electron or
Dissenting Shares, as defined in Section 1.10 hereof) will be automatically
converted into the right to receive Sixteen Dollars ($16.00) in cash (the
"Exchange Price") upon surrender of the certificate representing such share
of ThermoSpectra 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).
(b) STOCK OPTIONS. All options to purchase ThermoSpectra Common Stock
then outstanding under the Park Scientific Instruments Corporation 1988
Incentive Stock Plan, ThermoSpectra's Equity Incentive Plan, ThermoSpectra's
Employees Equity Incentive Plan and ThermoSpectra's Directors' Stock Option
Plan, each as amended (together, the "ThermoSpectra Stock Option Plans"),
shall be converted into options to purchase Thermo Instrument common stock,
par value $.10 per share ("Thermo Instrument Common Stock"), in accordance
with Section 5.8 hereof.
(c) CAPITAL STOCK OF MERGER SUB. Each share of Common Stock, par value
$.01 per share, of Merger Sub issued and outstanding immediately prior to
the Effective Time shall cease to be
A-5
<PAGE>
outstanding, be cancelled and retired without payment of any consideration
therefor and cease to exist.
(d) TREASURY STOCK; AFFILIATE STOCK. Each share of ThermoSpectra
Common Stock issued and outstanding and owned by Thermo Instrument and
Thermo Electron shall be converted into one validly issued, fully paid and
nonassessable share of Common Stock of the Surviving Corporation. All
treasury shares held by ThermoSpectra immediately prior to the Effective
Time shall cease to be outstanding, be cancelled and retired without payment
of any consideration therefor and cease to exist.
(e) ADJUSTMENTS TO EXCHANGE PRICE. The Exchange Price 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 ThermoSpectra Common Stock), recapitalization or other like
change without receipt of consideration with respect to ThermoSpectra Common
Stock occurring on or after the date hereof and prior to the Effective Time.
1.7. SURRENDER OF CERTIFICATES.
(a) PAYMENT AGENT. Thermo Instrument shall authorize one or more
persons to act as the payment agent (the "Payment Agent") in the Merger.
(b) THERMO INSTRUMENT TO PROVIDE EXCHANGE CONSIDERATION. Immediately
prior to the Effective Time, Thermo Instrument shall deposit with the
Payment Agent, in trust for the benefit of the holders of certificates (the
"Certificates") representing shares of ThermoSpectra Common Stock converted
pursuant to Section 1.6(a) for payment in accordance with this Article I,
cash in an amount equal to the product of the Exchange Price multiplied by
the number of shares of ThermoSpectra Common Stock entitled to conversion
for payment pursuant to Section 1.6(a).
(c) EXCHANGE PROCEDURES. Promptly after, and in no event more than
five days after, the Effective Time, Thermo Instrument shall cause the
Payment Agent to mail to each holder of record (as of the Effective Time) of
a Certificate (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 Payment Agent and shall
be in such form and have such other provisions as Thermo Instrument may
reasonably specify) and (ii) instructions for effecting the exchange of the
Certificates for the Exchange Price. Upon surrender of a Certificate for
cancellation to the Payment Agent or to such other agent or agents as may be
appointed by Thermo Instrument, together with such letter of transmittal
duly completed and validly executed in accordance with the instructions
thereto, the holder of such Certificate shall be entitled to receive in
exchange therefor payment of the Exchange Price multiplied by the number of
shares of ThermoSpectra Common Stock represented by such Certificate,
without interest, and the Certificate so surrendered shall forthwith be
cancelled. 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 payment of the Exchange Price for each share of
ThermoSpectra Common Stock represented on such Certificate.
(d) TRANSFERS OF OWNERSHIP. If payment of the Exchange Price 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 Instrument 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 satisfaction of Thermo Instrument or any agent designated
by it that such tax has been paid or is not payable.
(e) NO LIABILITY. Notwithstanding anything to the contrary in this
Section 1.7, neither the Payment Agent, Thermo Instrument, the Surviving
Corporation nor any party hereto shall be liable to
A-6
<PAGE>
a holder of shares of ThermoSpectra Common Stock for any amount properly
paid to a public official pursuant to any applicable abandoned property,
escheat or similar law.
(f) RESPONSIBILITY; TERM. The Payment Agent shall make the payments
referred to in Section 1.6(a) out of the funds supplied by Thermo
Instrument. Promptly following the date that is six months after the
Effective Date, the Payment Agent shall, upon request by Thermo Instrument,
deliver to Thermo Instrument all cash, Certificates and other documents in
its possession relating to the transactions described in this Agreement, and
the Payment Agent's duties shall terminate. Thereafter, each holder of a
Certificate formerly representing shares of ThermoSpectra Common Stock may
surrender such Certificate to Thermo Instrument and (subject to applicable
abandoned property, escheat and similar laws) receive in exchange therefor
the Exchange Price multiplied by the number of shares of ThermoSpectra
Common Stock represented by such Certificate, without any interest thereon,
but shall have no greater rights against Thermo Instrument than as may be
accorded to general creditors of Thermo Instrument under applicable law.
1.8. NO FURTHER OWNERSHIP RIGHTS IN THERMOSPECTRA COMMON STOCK. All
amounts paid upon the surrender of shares of ThermoSpectra Common Stock in
accordance with the terms hereof shall be deemed to have been paid in full
satisfaction of all rights pertaining to such shares of ThermoSpectra Common
Stock, and there shall be no further registration of transfers on the records of
the Surviving Corporation of shares of ThermoSpectra Common Stock that were
outstanding immediately prior to the Effective Time. If after the Effective
Time, Certificates are presented to the Surviving Corporation for any reason,
they shall be cancelled and exchanged for rights to receive the applicable
aggregate Exchange Price as provided in this Article I.
1.9. LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any Certificates
shall have been lost, stolen or destroyed, the Payment Agent shall pay the
aggregate Exchange Price 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 Instrument or the Payment Agent may reasonably
direct as indemnity against any claim that may be made against Thermo Instrument
or the Payment Agent with respect to the Certificates alleged to have been lost,
stolen or destroyed, unless Thermo Instrument waives such requirement in
writing.
1.10. DISSENTING SHARES. Notwithstanding any other provision of this
Agreement, shares of ThermoSpectra Common Stock that are outstanding immediately
prior to the Effective Time and which are held by stockholders who shall have
demanded properly in writing appraisal of such shares in accordance with DGCL
Section 262 and who shall not have withdrawn such demand or otherwise forfeited
appraisal rights (collectively, the "Dissenting Shares") shall not be converted
into or represent the right to receive the Exchange Price. Such stockholders
shall, as of the Effective Time, cease to retain any rights with respect to the
ThermoSpectra Common Stock, except as provided in the DGCL, including the right
to receive payment of the appraised value of the shares held by them in
accordance with the provisions of Section 262, provided that all Dissenting
Shares held by stockholders (i) who shall have failed to perfect or lost their
rights to appraisal of such shares under Section 262, or (ii) who have withdrawn
their demand for appraisal within 60 days after the Effective Date and accept
the terms offered upon the Merger in accordance with Section 262(e), shall
thereupon be, or be deemed to have been, converted into and to have become
exchangeable, as of the Effective Time, for the right to receive, without any
interest thereon, the Exchange Price, upon surrender, in the manner provided in
Section 1.7, of the Certificates that formerly evidenced such shares without the
prior consent of Thermo Instrument.
1.11. 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 ThermoSpectra and Merger Sub, the officers and directors of
ThermoSpectra and
A-7
<PAGE>
Merger Sub are fully authorized in the name of their respective corporations 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 THERMOSPECTRA
ThermoSpectra represents and warrants to Thermo Instrument and Merger Sub as
follows:
2.1. ORGANIZATION OF THERMOSPECTRA. ThermoSpectra 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 ThermoSpectra 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 ThermoSpectra.
2.2. THERMOSPECTRA CAPITAL STRUCTURE. The authorized capital stock of
ThermoSpectra consists of 25,000,000 shares of Common Stock, par value $.01 per
share, of which there were 15,335,839 shares issued and outstanding as of
April 3, 1999, and 423 shares in treasury as of April 3, 1999. All outstanding
shares of ThermoSpectra Common Stock are duly authorized, validly issued, fully
paid and nonassessable and are not subject to preemptive rights created by
statute, the Certificate of Incorporation or Bylaws of ThermoSpectra or any
agreement or document to which ThermoSpectra is a party or by which it is bound.
As of May 5, 1999, an aggregate of 1,650,043 shares of ThermoSpectra Common
Stock, net of exercises, were reserved for issuance to employees, consultants
and non-employee directors pursuant to the ThermoSpectra Stock Option Plans,
under which options are outstanding for an aggregate of 1,188,655 shares. All
shares of ThermoSpectra 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 nonassessable.
2.3. AUTHORITY.
(a) ThermoSpectra 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 ThermoSpectra, subject only to the
adoption of this Agreement by ThermoSpectra's stockholders and the filing
and recording of the Certificate of Merger pursuant to the DGCL. Under the
DGCL, ThermoSpectra's stockholders may adopt this Agreement by vote of the
holders of a majority of the outstanding shares of ThermoSpectra Common
Stock. This Agreement has been duly executed and delivered by ThermoSpectra,
and assuming the due authorization, execution and delivery by Thermo
Instrument and Merger Sub, constitutes the valid and binding obligation of
ThermoSpectra, enforceable in accordance with its terms. The execution and
delivery of this Agreement by ThermoSpectra do not, and the performance of
this Agreement by ThermoSpectra will not, (i) conflict with or violate the
Certificate of Incorporation or Bylaws of ThermoSpectra, (ii) subject to
obtaining the adoption by ThermoSpectra's stockholders of this Agreement as
contemplated in Section 5.2 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 ThermoSpectra or any of its material
subsidiaries or by which its or their respective properties is bound, 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 the
rights of ThermoSpectra 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 ThermoSpectra or any of
its material subsidiaries pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument
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or obligation to which ThermoSpectra or any of its material subsidiaries is
a party or by which ThermoSpectra or any of its material subsidiaries or its
or any of their properties are bound or affected, except, with respect to
clauses (ii) and (iii), for any such conflicts, violations, defaults or
other occurrences that would not have a material adverse effect on
ThermoSpectra 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 ThermoSpectra 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 (as defined in Section 5.1) and the
Schedule 13E-3 (as defined in Section 5.1) with the U.S. Securities and
Exchange Commission ("SEC") in accordance with 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 ThermoSpectra, upon
recommendation of the Special Committee that this Agreement, including the
Exchange Price, is fair to, and in the best interests of, the stockholders of
ThermoSpectra (other than Thermo Instrument and Thermo Electron), 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, and in the best interests of, ThermoSpectra and its stockholders, and
(iii) determined to recommend that the stockholders of ThermoSpectra approve
this Agreement.
2.5. FAIRNESS OPINION. The Special Committee of ThermoSpectra has received
an opinion from Tucker Anthony Incorporated dated May 21, 1999 that, as of such
date, the consideration to be received by ThermoSpectra's stockholders in the
Merger is fair, from a financial point of view, to ThermoSpectra's stockholders
other than Thermo Instrument and Thermo Electron.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THERMO INSTRUMENT AND MERGER SUB
Thermo Instrument and Merger Sub represent and warrant to ThermoSpectra as
follows:
3.1. ORGANIZATION. Thermo Instrument 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
Instrument or Merger Sub.
3.2. AUTHORITY.
(a) Each of Thermo Instrument 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
Instrument 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 Instrument and Merger Sub and,
assuming the due authorization, execution and delivery of this Agreement by
ThermoSpectra, this Agreement constitutes the valid and binding obligation
of each of Thermo Instrument and Merger Sub, enforceable in accordance with
its terms. The execution and delivery of
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this Agreement by each of Thermo Instrument and Merger Sub do not, and the
performance of this Agreement by each of Thermo Instrument and Merger Sub
will not, (i) conflict with or violate the Certificate of Incorporation or
Bylaws of Thermo Instrument or the Certificate of Incorporation or Bylaws of
Merger Sub, (ii) subject to compliance with the requirements set forth in
Section 3.2(b) below, conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to Thermo Instrument or any of its
material subsidiaries (including Merger Sub, but excluding ThermoSpectra and
its 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 Instrument'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 Instrument or any of its material subsidiaries (including Merger Sub,
but excluding ThermoSpectra and its subsidiaries) pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Thermo Instrument or
any of its material subsidiaries (including Merger Sub, but excluding
ThermoSpectra and its subsidiaries) is a party or by which Thermo Instrument
or any of its material subsidiaries (including Merger Sub, but excluding
ThermoSpectra and its subsidiaries) or its or any of their respective
properties are bound or affected, except, with respect to clauses (ii) and
(iii), for any such conflicts, violations, defaults or other occurrences
that would not have a material adverse effect on Thermo Instrument or Merger
Sub.
(b) No consent, approval, order or authorization of, or registration,
declaration or filing with any Governmental Entity is required by or with
respect to Thermo Instrument 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
Schedule 13E-3 (as defined in Section 5.1) with the SEC in accordance with
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. FINANCIAL RESOURCES. Thermo Instrument has the financial resources to
consummate the transactions contemplated by this Agreement and to pay the
consideration in the Merger provided for in Section 1.6(a).
ARTICLE IV
CONDUCT PRIOR TO THE EFFECTIVE TIME
4.1. CONDUCT OF BUSINESS BY THERMOSPECTRA. 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, ThermoSpectra shall,
except as otherwise contemplated by this Agreement or consented to by Thermo
Instrument, carry on its business in the usual, regular and ordinary course, in
substantially the same manner as 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. CERTAIN ACTIONS BY THERMOSPECTRA. In addition, notwithstanding
Section 4.1 above, without the prior consent of Thermo Instrument, ThermoSpectra
shall not do any of the following:
(a) Waive any stock repurchase rights, accelerate, amend or change the
period of exercisability of options or restricted stock, or reprice options
granted under any employee, consultant or director stock plans or authorize
cash payments in exchange for any options granted under any of such plans;
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(b) Enter into any material partnership arrangements, joint development
agreements or strategic alliances;
(c) Grant any severance or termination pay to any officer or employee
except payments in amounts consistent with policies and past practices or
pursuant to written agreements outstanding, or policies existing, on the
date hereof, or adopt any new severance plan;
(d) Declare or pay any dividends on or make any other distributions
(whether in cash, stock or property) in respect of any capital stock or
split, combine or reclassify any capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in
substitution for any capital stock;
(e) Issue, deliver, sell, authorize or propose the issuance, delivery
or sale of, any shares of capital stock or any securities convertible into
shares of capital stock, or subscriptions, rights, warrants or options to
acquire any shares of capital stock or any securities convertible into
shares of capital stock, or enter into other agreements or commitments of
any character obligating it to issue any such shares or convertible
securities, other than the issuance of shares of ThermoSpectra Common Stock
pursuant to the exercise of stock options therefor;
(f) Cause, permit or propose any amendments to its Certificate of
Incorporation or Bylaws;
(g) Acquire or agree to acquire by merging or consolidating with, or by
purchasing any equity interest in or a material portion of the assets of, or
by any other manner, any business or any corporation, partnership interest,
association or other business organization or division thereof, or otherwise
acquire or agree to acquire any assets or enter into any joint ventures,
strategic partnerships or alliances;
(h) Sell, lease, license, encumber or otherwise dispose of any
properties or assets that are material, individually or in the aggregate, to
the business of ThermoSpectra;
(i) Incur any indebtedness for borrowed money (other than ordinary
course trade payables or pursuant to existing credit facilities in the
ordinary course of business) or guarantee any such indebtedness or issue or
sell any debt securities or warrants or guarantee any debt securities of
others;
(j) Adopt or amend any employee benefit or stock purchase or option
plan, or enter into any employment contract, pay any special bonus or
special remuneration to any director or employee, or increase the salaries
or wage rates of its officers or employees, except increases in amounts
consistent with policies and past practices;
(k) Pay, discharge or satisfy any claim, liability or obligation
(absolute, accrued, asserted or unasserted, contingent or otherwise), other
than the payment, discharge or satisfaction in the ordinary course of
business;
(l) Make any grant of exclusive rights to any third party; or
(m) Agree in writing or otherwise to take any of the actions described
in this Section 4.2.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1. SCHEDULE 13E-3; PROXY STATEMENT; OTHER FILINGS.
(a) ThermoSpectra agrees that the information supplied by ThermoSpectra
for inclusion or incorporation by reference in the Rule 13e-3 Transaction
Statement on Schedule 13E-3 (such Schedule, as amended or supplemented, is
referred to herein as the "Schedule 13E-3") or the proxy statement to be
sent to the stockholders of ThermoSpectra in connection with the meeting of
ThermoSpectra's stockholders to consider the adoption of this Agreement and
approval of the Merger
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(the "ThermoSpectra Stockholders' Meeting") (such proxy statement, as
amended or supplemented, is referred to herein as the "Proxy Statement")
shall not, on the date the Proxy Statement is first mailed to
ThermoSpectra's stockholders and at the time of the ThermoSpectra
Stockholders' Meeting, 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; or omit to state any material
fact necessary to correct any statement in any earlier written communication
with respect to the solicitation of proxies for the ThermoSpectra
Stockholders' Meeting or the Schedule 13E-3 that has become false or
misleading.
(b) Thermo Electron, Thermo Instrument and Merger Sub agree that the
information supplied by Thermo Electron, Thermo Instrument and Merger Sub
for inclusion in the Schedule 13E-3 and the Proxy Statement shall not, on
the date the Proxy Statement is first mailed to ThermoSpectra's
stockholders, and at the time of the ThermoSpectra Stockholders' Meeting,
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; or omit to state any material fact necessary
to correct any statement in any earlier written communication with respect
to the solicitation of proxies for the ThermoSpectra Stockholders' Meeting
or the Schedule 13E-3 that has become false or misleading.
(c) As promptly as practicable after the execution of this Agreement,
Thermo Electron, Thermo Instrument and ThermoSpectra will jointly prepare
and file with the SEC the Schedule 13E-3 and the Proxy Statement. Thermo
Electron, Thermo Instrument and ThermoSpectra will cause the Schedule 13E-3
and the Proxy Statement to be mailed to stockholders of ThermoSpectra at the
earliest practicable time. 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 Schedule 13E-3 or the Proxy 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 Proxy Statement, the Schedule 13E-3 or
the Merger. Whenever any event occurs that is required to be set forth in an
amendment or supplement to the Schedule 13E-3 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 ThermoSpectra, such amendment
or supplement.
(d) The Proxy Statement will include the recommendation of the Board of
Directors of ThermoSpectra in favor of approval of this Agreement (except
that the Board of Directors of ThermoSpectra may withdraw, modify or refrain
from making such recommendation to the extent that the Board determines in
good faith on the written advice of outside legal counsel that the Board's
fiduciary duties under applicable law require it to do so).
5.2. MEETING OF THERMOSPECTRA STOCKHOLDERS. Promptly after the date
hereof, ThermoSpectra will take all action necessary in accordance with the DGCL
and its Certificate of Incorporation and Bylaws to convene the ThermoSpectra
Stockholders' Meeting to be held as promptly as practicable for the purpose of
voting upon this Agreement. Unless otherwise required by the fiduciary duties of
the ThermoSpectra Board of Directors, ThermoSpectra will use its 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. Each of Thermo Instrument and Thermo Electron shall vote, or cause to
be voted, all of the ThermoSpectra Common Stock then owned by it and any of its
subsidiaries in favor of the approval of this Agreement and the Merger.
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5.3. ACCESS TO INFORMATION. ThermoSpectra will afford Thermo Instrument
and its accountants, counsel and other representatives reasonable access during
normal business hours to the properties, books, records and personnel of
ThermoSpectra during the period prior to the Effective Time to obtain all
information concerning the business, including the status of product development
efforts, properties, results of operations and personnel of ThermoSpectra, as
Thermo Instrument may reasonably request. Thermo Instrument 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, Thermo Instrument shall not be
required to keep confidential any information (i) which is or becomes generally
available to the public, other than by wrongful disclosure by Thermo Instrument
or Merger Sub in violation of this Agreement, (ii) which was available to Thermo
Instrument on a nonconfidential basis prior to disclosure to Thermo Instrument,
or (iii) which becomes available to Thermo Instrument on a nonconfidential basis
from a source other than ThermoSpectra.
5.4. PUBLIC DISCLOSURE. Thermo Instrument and ThermoSpectra 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.
5.5. LEGAL REQUIREMENTS. Each of Thermo Instrument, Merger Sub and
ThermoSpectra 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.
5.6. NOTIFICATION OF CERTAIN MATTERS. Thermo Instrument and Merger Sub
will give prompt notice to ThermoSpectra, and ThermoSpectra will give prompt
notice to Thermo Instrument, 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 Instrument and
Merger Sub or ThermoSpectra, 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.
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 Instrument and ThermoSpectra 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. 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 AND EMPLOYEE STOCK PURCHASE PLANS.
(a) At the Effective Time, each outstanding option to purchase shares of
ThermoSpectra Common Stock (each a "ThermoSpectra Stock Option") under the
ThermoSpectra Stock Option Plans, whether or not exercisable, will be
assumed by Thermo Instrument. Each ThermoSpectra Stock
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Option so assumed by Thermo Instrument under this Agreement will continue to
have, and be subject to, the same terms and conditions set forth in the
applicable ThermoSpectra Stock Option Plan immediately prior to the
Effective Time (including, without limitation, any repurchase rights),
except that (i) each ThermoSpectra Stock Option will be exercisable (or will
become exercisable in accordance with its terms) for that number of whole
shares of Thermo Instrument Common Stock equal to the product of the number
of shares of ThermoSpectra Common Stock that were issuable upon exercise of
such ThermoSpectra Stock Option immediately prior to the Effective Time
multiplied by a fraction (the "Exchange Ratio"), the numerator of which is
the Exchange Price and the denominator of which is the closing price of the
Thermo Instrument Common Stock on the day immediately preceding the
Effective Date as reported by the American Stock Exchange, rounded down to
the nearest whole number of shares of Thermo Instrument Common Stock, and
(ii) the per share exercise price for the shares of Thermo Instrument Common
Stock issuable upon exercise of such assumed ThermoSpectra Stock Option will
be equal to the quotient determined by dividing the exercise price per share
of ThermoSpectra Common Stock at which such ThermoSpectra 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
Instrument will issue to each holder of an outstanding ThermoSpectra Stock
Option a notice describing the foregoing assumption of such ThermoSpectra
Stock Option by Thermo Instrument.
(b) At the Effective Time, each outstanding option to purchase shares of
ThermoSpectra Common Stock (each, a "ThermoSpectra ESPP Stock Option") under
the ThermoSpectra Employees' Stock Purchase Plan ("ThermoSpectra ESPP") will
be assumed by Thermo Instrument. Each ThermoSpectra ESPP Stock Option so
assumed by Thermo Instrument will continue to have, and be subject to, the
same terms and conditions as are set forth in the ThermoSpectra ESPP
immediately prior to the Effective Time except that (i) the assumed option
shall be exercisable for shares of Thermo Instrument Common Stock; (ii) the
purchase price per share of Thermo Instrument Common Stock shall be the
lower of (A) eighty-five percent (85%) of (x) the per-share Market Value of
ThermoSpectra Common Stock on the Grant Date divided by (y) the Exchange
Ratio, with the resulting price rounded up to the nearest whole cent, and
(B) eighty-five percent (85%) of the Market Value of Thermo Instrument
Common Stock as of the Exercise Date; and (iii) the $25,000 limit under
Section 9.2(i) of the ThermoSpectra ESPP shall be applied by taking into
account Thermo Instrument's assumption of the ThermoSpectra ESPP Stock
Options in accordance with Section 423(b)(8) of the Internal Revenue Code of
1986, as amended, and applicable regulations. For purposes of this
subsection, "Market Value," "Grant Date," and "Exercise Date" shall have the
meaning given them in the ThermoSpectra ESPP.
(c) Thermo Instrument will reserve sufficient shares of Thermo
Instrument Common Stock for issuance under this Section 5.8.
5.9. THERMO INSTRUMENT FORM S-8. Thermo Instrument agrees to file a
registration statement on Form S-8 or, if required, an amendment to Thermo
Instrument's then effective registration statement on Form S-8, for (i) the
shares of Thermo Instrument Common Stock issuable with respect to the assumed
ThermoSpectra Stock Options no later than the Closing Date and (ii) for the
shares of Thermo Instrument Common Stock issuable with respect to the assumed
ThermoSpectra ESPP Stock Options no later than October 31, 1999, and shall, in
each case, keep such registration statement effective for so long as any such
options remain outstanding.
5.10. INDEMNIFICATION; INSURANCE.
(a) From and for a period of six (6) years after the Effective Time,
Thermo Instrument will and will cause the Surviving Corporation to fulfill
and honor in all respects the indemnification obligations of ThermoSpectra
pursuant to the provisions of the Certificate of Incorporation and the
Bylaws of ThermoSpectra as in effect immediately prior to the Effective
Time. The Certificate of Incorporation
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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 ThermoSpectra,
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, at the Effective
Time, were directors or officers of ThermoSpectra, unless such modification
is required by law.
(b) For a period of six (6) years after the Effective Time, Thermo
Instrument 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
ThermoSpectra directors and officers currently covered by Thermo Electron's
liability insurance policy with coverage providing substantially the same
amount and scope as existing coverage for such ThermoSpectra 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 ThermoSpectra (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.
5.11. DEFERRED COMPENSATION PLAN. At the Effective Time, the ThermoSpectra
deferred compensation plan for directors (the "Deferred Compensation Plan") will
terminate, and ThermoSpectra will distribute to each participant the sum in cash
equal to the balance of stock units credited to his or her deferred compensation
account under the Deferred Compensation Plan as of the Effective Time multiplied
by the Exchange Price.
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) STOCKHOLDER APPROVAL. This Agreement shall have been approved and
adopted by the requisite vote under the DGCL by the stockholders of
ThermoSpectra.
(b) 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.
6.2. ADDITIONAL CONDITIONS TO OBLIGATIONS OF THERMOSPECTRA. The
obligations of ThermoSpectra 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
ThermoSpectra:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Thermo Instrument and Merger Sub contained in this Agreement shall be
true and correct 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 Thermo Instrument; and ThermoSpectra shall have received a
certificate to such effect
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signed on behalf of Thermo Instrument by the President, Chief Executive
Officer or Vice President of Thermo Instrument; and
(b) AGREEMENTS AND COVENANTS. Thermo Instrument 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 ThermoSpectra shall have
received a certificate to such effect signed on behalf of Thermo Instrument
by the President, Chief Executive Officer or Vice President of Thermo
Instrument.
6.3. ADDITIONAL CONDITIONS TO THE OBLIGATIONS OF THERMO INSTRUMENT AND
MERGER SUB. The obligations of Thermo Instrument 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 Instrument:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of ThermoSpectra contained in this Agreement shall be true and correct 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
ThermoSpectra; and Thermo Instrument and Merger Sub shall have received a
certificate to such effect signed on behalf of ThermoSpectra by the
President, Chief Executive Officer or Vice President of ThermoSpectra; and
(b) AGREEMENTS AND COVENANTS. ThermoSpectra 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 Instrument shall have received a certificate to
such effect signed on behalf of ThermoSpectra by the President, Chief
Executive Officer or Vice President of ThermoSpectra.
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 ThermoSpectra:
(a) by mutual written consent duly authorized by the Boards of Directors
of Thermo Instrument and ThermoSpectra (upon approval of the Special
Committee);
(b) by either ThermoSpectra (upon approval of the Special Committee) or
Thermo Instrument if the Merger shall not have been consummated by
October 31, 1999; 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 ThermoSpectra (upon approval of the Special Committee) or
Thermo Instrument 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 ThermoSpectra (upon approval of the Special Committee) or
Thermo Instrument if the required approval of the stockholders of
ThermoSpectra 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
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<PAGE>
right to terminate this Agreement under this Section 7.1(d) shall not be
available to ThermoSpectra where the failure to obtain stockholder approval
of ThermoSpectra shall have been caused by the action or failure to act of
ThermoSpectra in breach of this Agreement and the right to terminate this
Agreement under this Section 7.1(d) shall not be available to Thermo
Instrument where the failure to obtain the requisite vote by the
stockholders of ThermoSpectra shall have been caused by the failure of
Thermo Instrument or Thermo Electron to vote their respective shares of
ThermoSpectra Common Stock in favor of the Merger and this Agreement);
(e) by ThermoSpectra if the ThermoSpectra Board of Directors (upon
approval of the Special Committee) determines in good faith on the advice of
outside legal counsel that the Board's fiduciary duties under applicable law
require it to do so;
(f) by ThermoSpectra (upon approval of the Special Committee), upon a
breach of any representation, warranty, covenant or agreement on the part of
Thermo Instrument 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 Instrument within ten (10) business days
following receipt by Thermo Instrument of written notice of such breach from
ThermoSpectra; or
(g) by Thermo Instrument, upon a breach of any representation, warranty,
covenant or agreement on the part of ThermoSpectra 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 ThermoSpectra
within ten (10) business days following receipt by ThermoSpectra of written
notice of such breach from Thermo Instrument.
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.
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 Thermo Instrument contained in Section 5.3 shall
survive any such termination and (ii) nothing herein shall relieve any party
from liability for any 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 the
party incurring such expenses, 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
ThermoSpectra may not amend this Agreement without the approval 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 ThermoSpectra may not
take any such actions without the approval 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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<PAGE>
ARTICLE VIII
GENERAL PROVISIONS
8.1. NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of ThermoSpectra, Thermo Instrument and Merger Sub contained in
this Agreement shall terminate at the Effective Time, and only the covenants
that by their terms 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 Instrument or Merger Sub, to:
Thermo Instrument Systems Inc.
860 West Airport Freeway, Suite 301
Hurst, TX 76054
Attention: President
Telephone: (817) 485-6663
Facsimile: (817) 485-8256
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 ThermoSpectra, to:
ThermoSpectra Corporation
8 East Forge Parkway
Franklin, MA 02038
Attention: President
Telephone: (508) 528-0551
Facsimile: (508) 520-9570
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attention: Richard A. Soden, Esq.
Telephone: (617) 570-1533
Facsimile: (617) 523-1231
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.
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<PAGE>
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; and (b) are not intended to confer upon any other person any rights or
remedies hereunder, except as set forth herein.
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.
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.
[The rest of this page intentionally left blank.]
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<PAGE>
IN WITNESS WHEREOF, Thermo Instrument, Merger Sub and ThermoSpectra have
caused this Agreement to be signed by themselves or their duly authorized
respective officers, all as of the date first written above.
<TABLE>
<S> <C> <C>
THERMO INSTRUMENT SYSTEMS INC.
By: /s/ EARL R. LEWIS
-----------------------------------------
Name: Earl R. Lewis
Title: President and Chief Executive
Officer
</TABLE>
<TABLE>
<S> <C> <C>
TS ACQUISITION CORPORATION
By: /s/ EARL R. LEWIS
-----------------------------------------
Name: Earl R. Lewis
Title: President
</TABLE>
<TABLE>
<S> <C> <C>
THERMOSPECTRA CORPORATION
By: /s/ THEO MELAS-KYRIAZI
-----------------------------------------
Name: Theo Melas-Kyriazi
Title: Chairman of the Board and Chief
Financial Officer
</TABLE>
Thermo Electron Corporation joins this Agreement for the specific purpose of
consenting to the provisions of Section 1.6 hereof and agreeing to perform its
obligations under Sections 5.1 and 5.2 hereof.
<TABLE>
<S> <C> <C>
THERMO ELECTRON CORPORATION
By: /s/ SANDRA L. LAMBERT
-----------------------------------------
Name: Sandra L. Lambert
Title: Vice President and Secretary
</TABLE>
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<PAGE>
[ATTACHMENT A TO PROXY STATEMENT]
FORM OF PROXY
THERMOSPECTRA CORPORATION
PROXY FOR SPECIAL MEETING OF STOCKHOLDERS TO BE HELD DECEMBER 9, 1999
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Barry S. Howe, Theo Melas-Kyriazi
and Kenneth J. Apicerno, or any one of them in the absence of the others, as
attorneys and proxies of the undersigned, with full power of substitution,
for and in the name of the undersigned, to represent the undersigned at the
Special Meeting of the stockholders of ThermoSpectra Corporation, a Delaware
corporation (the "Company"), to be held on Thursday, December 9, 1999, at
10:00 a.m., at the offices of Thermo Electron Corporation, 81 Wyman Street,
Waltham, Massachusetts 02454-9046, and at any adjournment or adjournments
thereof, and to vote all shares of common stock of the Company standing in
the name of the undersigned on October 15, 1999, with all of the powers the
undersigned would possess if personally present at such meeting.
(IMPORTANT - TO BE SIGNED AND DATED ON THE REVERSE SIDE.)
<PAGE>
SPECIAL MEETING OF STOCKHOLDERS
THERMOSPECTRA CORPORATION
DECEMBER 9, 1999
1. To consider and vote on a proposal to approve an Agreement and Plan
of Merger dated as of May 21, 1999 (the "Merger Agreement") pursuant to which TS
Acquisition Corporation, a newly-formed company and wholly owned subsidiary of
Thermo Instrument Systems Inc., will be merged (the "Merger") with and into the
Company and each stockholder of the Company (other than stockholders who are
entitled to and have perfected their dissenters' rights, shares held by the
Company in treasury and shares held by Thermo Instrument Systems Inc. and Thermo
Electron Corporation) will become entitled to receive $16.00 in cash, without
interest, for each outstanding share of common stock, $.01 par value, of the
Company owned by such stockholder immediately prior to the effective time of the
Merger. A copy of the Merger Agreement is attached as Appendix A to and is
described in the accompanying Proxy Statement.
[ ] For [ ] Against [ ] Abstain
2. To consider and act in their discretion upon such other matters as
may properly come before the Special Meeting or any adjournment or adjournments
thereof.
[ ] For [ ] Against [ ] Abstain
THE SHARES REPRESENTED BY THIS PROXY WILL BE VOTED "FOR" THE PROPOSALS
SET FORTH ABOVE IF NO INSTRUCTION TO THE CONTRARY IS INDICATED OR IF NO
INSTRUCTION IS GIVEN.
Copies of the Notice of Special Meeting and of the Proxy Statement have
been received by the undersigned.
PLEASE DATE, SIGN AND PROMPTLY RETURN THIS
PROXY IN THE ENCLOSED ENVELOPE.
Signature(s)
--------------------------------
Date
---------------------------------------
Note: This Proxy should be dated, signed by the
stockholder(s) exactly as his or her name appears
hereon, and returned promptly in the enclosed
envelope. Persons signing in a fiduciary capacity
should so indicate. If shares are held by joint
tenants or as community property, both should sign.
PLEASE DATE, SIGN AND MAIL YOUR PROXY CARD BACK AS SOON AS POSSIBLE!
