UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)
Thermo Cardiosystems Inc.
----------------------------------
(Name of Issuer)
Common Stock, par value $.10 per share
------------------------------------------------------------
(Title of Class of Securities)
88355K101
----------------
(CUSIP Number)
Seth H. Hoogasian, Esq. Thermo Electron Corporation
General Counsel 81 Wyman Street
(617) 622-1000 Waltham, MA 02254
---------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
January 22, 1996
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A
fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent
of the class of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial ownership of five percent
or less of such class.) (See Rule 13d-7).
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 2 of 16 Pages
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Thermo Electron Corporation
IRS No. 04-2209186
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ x ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
7 SOLE VOTING POWER
NUMBER OF
130,002
SHARES
8 SHARED VOTING POWER
BENEFICIALLY
0
OWNED BY 9 SOLE DISPOSITIVE POWER
EACH 130,002
10 SHARED DISPOSITIVE POWER
REPORTING
0
PERSON WITH
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 3 of 16 Pages
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
130,002
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
0.5%
14 TYPE OF REPORTING PERSON *
CO
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 4 of 16 Pages
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Thermedics Inc.
IRS No. 04-2788806
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ x ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Commonwealth of Massachusetts
7 SOLE VOTING POWER
NUMBER OF
13,155,075
SHARES
8 SHARED VOTING POWER
BENEFICIALLY
0
OWNED BY 9 SOLE DISPOSITIVE POWER
EACH 13,155,075
10 SHARED DISPOSITIVE POWER
REPORTING
0
PERSON WITH
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 5 of 16 Pages
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,155,075
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
54.4%
14 TYPE OF REPORTING PERSON *
CO
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 6 of 16 Pages
Item 1. Security and Issuer.
This Amendment relates to the shares (the "Shares") of common stock,
par value $0.10 per share, of Thermo Cardiosystems Inc. (the "Issuer").
The Issuer's principal executive offices are located at 470 Wildwood
Street, Woburn, Massachusetts 01888.
Item 2. Identity and Background.
This Amendment is being filed by Thermo Electron Corporation ("Thermo
Electron") and its subsidiary Thermedics Inc. ("Thermedics" and, together
with Thermo Electron, the "Reporting Persons"). The Reporting Persons have
previously reported information relating to the Shares annually on
amendments to the Reporting Persons' original Schedule 13G. Beginning with
this Amendment, the Reporting Persons are reporting their ownership
information with respect to the Issuer on Schedule 13D.
The principal business address and principal office address of Thermo
Electron, a Delaware corporation, is 81 Wyman Street, Waltham,
Massachusetts 02254 and the principal business address and principal office
address of Thermedics, a Massachusetts corporation, is 470 Wildwood Street,
Woburn, Massachusetts 01888.
Thermo Electron is a manufacturer of environmental monitoring and
analysis instruments, biomedical products including heart-assist devices
and mammography systems, papermaking and recycling equipment, alternative-
energy systems, and other specialized products. Thermo Electron also
provides environmental and metallurgical services and conducts advanced
technology research and development.
Thermedics develops, manufactures, and markets product quality
assurance systems, precision weighing and inspection equipment,
electrochemistry and microweighing products, electronic test instruments,
and explosives-detection devices, as well as implantable heart-assist
devices and other biomedical products.
Appendix A attached to this Amendment sets forth with respect to each
executive officer and director of the Reporting Persons his or her
(a) name; (b) residence or business address; (c) present principal
occupation or employment and the name, principal business and address of
any corporation or other organization in which such employment is
conducted; and (d) citizenship. To the knowledge of the Reporting Persons,
there is no person who may be deemed to be a controlling person of the
Reporting Persons (except that Thermo Electron may be deemed to control
Thermedics by virtue of its majority ownership).
During the last five years, neither the Reporting Persons nor (to the
knowledge of the Reporting Persons) any executive officer or director of
the Reporting Persons have been convicted in a criminal proceeding
(excluding traffic violations and similar misdemeanors).
During the last five years, neither the Reporting Persons nor (to the
knowledge of the Reporting Persons) any executive officer or director of
the Reporting Persons has been a party to a civil proceeding of a judicial
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 7 of 16 Pages
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.
Item 3. Source and Amount of Funds or Other Consideration.
On January 22, 1996, Thermo Electron's wholly owned subsidiary TMO TCA
Investments Inc. merged with and into Thermedics, through which merger
Thermo Electron exchanged 315,199 shares of the common stock of Thermo
Voltek Corp. and 529,965 Shares of the Issuer for 1,688,161 shares of the
common stock of Thermedics. The number of shares of Thermedics' common
stock was determined by (a) taking the sum of (i) the product of 315,199
times $17.125, the five day average closing price of Thermo Voltek Corp.'s
common stock from January 15, 1996 to January 19, 1996 and (ii) the product
of 529,965 times $65.150, the five day average closing price of the Shares
from January 15, 1996 to January 19, 1996, and (b) dividing the result by
$23.650, the five day average closing price of Thermedics' common stock
from January 15, 1996 to January 19, 1996.
Item 4. Purpose of Transaction
The purpose of this transaction was to ensure that Thermedics'
ownership of Thermo Voltek Corp.'s capital stock and the Issuer's capital
stock remained greater than 50% of the total outstanding shares of capital
stock of each of the two subsidiaries.
Thermedics may make additional purchases of Shares or other securities
of the Issuer in such manner and in such amounts as it determines to be
appropriate in order to maintain at least 50% ownership of the Issuer or
for other purposes. The Reporting Persons may also make additional
purchases of Shares or other securities of the Issuer in such manner and in
such amounts as it determines to be appropriate for other purposes. In
determining whether to do so for other purposes, they will consider various
relevant factors, including their evaluation of the Issuer's business,
prospects and financial condition amounts and prices of available
securities of the Issuer, the market for the Issuer's securities, other
opportunities available to the Reporting Persons and general market and
economic conditions. Purchases may be made either on the open market or
directly from the Issuer.
Except as set forth in this Item 4, neither of the Reporting Persons
nor, to the Reporting Persons' knowledge, any of the executive officers or
directors of the Reporting Persons has any current plans or proposals which
relate to or would result in any of the actions specified in clauses (a)
through (j) of Item 4 of Schedule 13D, although the Reporting Persons do
not rule out the possibility of effecting or seeking to effect any such
actions in the future.
Item 5. Interest in Securities of the Issuer.
(a) The Shares beneficially owned by the Reporting Persons include
13,155,075 Shares, or approximately 54.4% of the outstanding Shares, owned
by Thermedics, and 130,002 Shares, or approximately 0.5% of the outstanding
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 8 of 16 Pages
Shares, owned by Thermo Electron. To the knowledge of the Reporting
Persons, the executive officers and directors of the Reporting Persons
beneficially own an aggregate of 442,832 Shares or approximately 1.8% of
the outstanding Shares. To the knowledge of the Reporting Persons, the
Shares beneficially owned by all executive officers and directors of the
Reporting Persons include 373,081 Shares that such persons have the right
to acquire within 60 days through the exercise of stock options.
(b) The Reporting Persons and the executive officers and directors of
the Reporting Persons have the sole power to vote and dispose of the Shares
each such person owns. As of January 22, 1996, Thermo Electron owned more
than 50% of the outstanding common stock of Thermedics and, therefore, may
be deemed to have the power to vote and dispose of the Shares owned by
Thermedics. However, Thermo Electron disclaims the existence of a group
between itself and Thermedics for purposes of this Schedule 13D.
(c) During the past 60 days, the Reporting Persons effected only the
transaction described in Item 3 with respect to the Shares. To the
knowledge of the Reporting Persons, the following are the only transactions
in the Shares effected by an executive officer or director of the Reporting
Person in the past 60 days:
Name Date Amount Price Transfer Type
---- ---- ------ ----- -------------
John N. Hatsopoulos 1/2/96 1,000 $74.50 Sale on open market
Paul F. Kelleher 1/3/96 500 $74.12 Sale on open market
Paul F. Kelleher 1/3/96 5,000 $73.00 Sale on open market
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
respect to Securities of the Issuer.
The merger described in Item 3 was effected pursuant to an Agreement
and Plan of Merger dated January 22, 1996 by and between TMO TCA
Investments Inc. and Thermedics (the "Agreement").
Item 7. Material to Be Filed as Exhibits
The Agreement is attached hereto as Exhibit A.
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 9 of 16 Pages
Signatures
After reasonable inquiry and to the best of their knowledge and
belief, the Reporting Persons certify that the information set forth in
this statement is true, complete and correct.
Date: February 13, 1996 THERMO ELECTRON CORPORATION
By: /s/Jonathan W. Painter
----------------------------
Jonathan W. Painter
Treasurer
Date: February 13, 1996 THERMEDICS INC.
By: /s/Jonathan W. Painter
----------------------------
Jonathan W. Painter
Treasurer
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 10 of 16 Pages
APPENDIX A
----------
The following individuals are executive officers or directors of
Thermo Electron Corporation ("Thermo Electron") and/or its subsidiary
Thermedics Inc. ("Thermedics"). Unless otherwise noted, all such
individuals are citizens of the United States. Unless otherwise noted, the
business address of each executive officer of Thermo Electron is Thermo
Electron Corporation, 81 Wyman Street, Waltham, Massachusetts 02254 and the
business address of each executive officer of Thermedics is Thermedics
Inc., 470 Wildwood Street, Woburn, Massachusetts 01888.
John M. Albertine: Director, Thermo Electron
------------------
Dr. Albertine is Chairman of the Board and Chief Executive Officer of
Albertine Enterprises, Inc., an economic and public policy consulting firm.
His business address is Albertine Enterprises, Inc., 1156 15th Street N.W.,
Suite 505, Washington, DC 20005.
Peter O. Crisp: Director, Thermo Electron
---------------
Director, Thermedics
Mr. Crisp is a General Partner of Venrock Associates, a venture
capital investment firm. His business address is 30 Rockefeller Plaza, New
York, New York 10112.
Elias P. Gyftopoulos: Director, Thermo Electron
---------------------
Dr. Gyftopoulos is the Ford Professor of Engineering at the
Massachusetts Institute of Technology. His business address is
Massachusetts Institute of Technology, Room 24-109, 77 Massachusetts
Avenue, Cambridge, Massachusetts 02139.
Frank Jungers: Director, Thermo Electron
-------------
Mr. Jungers is a consultant on business and energy matters. His
business address is 5584 S.E. Hillwood Circle, Milwaukie, Oregon 97267.
Robert A. McCabe: Director, Thermo Electron
-----------------
Mr. McCabe is President of Pilot Capital Corporation, a firm
specializing in private investments and acquisition services. His business
address is Pilot Capital Corporation, 444 Madison Avenue, Suite 2103, New
York, New York 10022.
Frank E. Morris: Director, Thermo Electron
----------------
Dr. Morris served as the Peter Drucker Professor of Management at
Boston College from 1989 to 1994. Dr. Morris also served as President of
the Federal Reserve Bank of Boston from 1968 until he retired in 1988. His
residential address is 105 Walpole Street, Dover, Massachusetts 02030.
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 11 of 16 Pages
Donald E. Noble: Director, Thermo Electron
----------------
For more than 20 years, from 1959 to 1980, Mr. Noble served as the
Chief Executive Officer of Rubbermaid, Incorporated, first with the title
of President and then as Chairman of the Board. His business address is
Rubbermaid Incorporated, 1147 Akron Road, Wooster, Ohio 44691.
Hutham S. Olayan: Director, Thermo Electron
-----------------
Ms. Olayan is the President and a director of Olayan America
Corporation and President of Competrol Real Estate Limited, firms engaged
in advisory services and private real estate investments. Her business
address is Suite 1100, 505 Park Avenue, New York, New York 10022. Ms.
Olayan is a citizen of Saudi Arabia.
Roger D. Wellington: Director, Thermo Electron
--------------------
Mr. Wellington is a business consultant. His business address is 25
Hillside Road, Cumberland, Rhode Island 02864.
Paul F. Ferrari: Director, Thermedics
----------------
Mr. Ferrari has been a consultant to Thermo Electron since January
1991. Mr. Ferrari was a Vice President of Thermo Electron from 1988 until
his retirement at the end of 1990, its Secretary from 1981 to 1990 and its
Treasurer from 1967 to 1988. He served as Thermedics' Clerk from 1983 to
1990 and its Treasurer from 1983 to 1988. His business address is Thermo
Electron Corporation, 81 Wyman Street, Waltham, Massachusetts 02254.
Nicholas T. Zervas: Director, Thermedics
-------------------
Dr. Zervas has been Chief of Neurological Service at Massachusetts
General Hospital since 1977. His business address is Massachusetts General
Hospital, Neurosurgery Department, Boston, Massachusetts 02114.
George N. Hatsopoulos: Director, Chairman of the
----------------------
Board, President and
Chief Executive Officer,
Thermo Electron
Director, Thermedics
John N. Hatsopoulos: Executive Vice President
--------------------
and Chief Financial Officer,
Thermo Electron
Director, Chairman of the
Board, Vice President and
Chief Financial Officer,
Thermedics
Robert C. Howard: Executive Vice President,
-----------------
Thermo Electron
Director, Thermedics
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 12 of 16 Pages
Peter G. Pantazelos: Executive Vice President,
--------------------
Thermo Electron
Arvin H. Smith: Executive Vice President,
---------------
Thermo Electron
Director, Thermedics
William A. Rainville: Senior Vice President,
---------------------
Thermo Electron
John W. Wood, Jr.: Senior Vice President,
------------------
Thermo Electron
Director, President and Chief
Executive Officer, Thermedics
Paul F. Kelleher: Vice President, Finance
-----------------
and Chief Accounting Officer,
Thermo Electron
Chief Accounting Officer,
Thermedics
John T. Keiser: Senior Vice President,
---------------
Thermedics
Victor L. Poirier: Senior Vice President,
------------------
Thermedics
David H. Fine: Vice President, Thermedics
--------------
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 13 of 16 Pages
Exhibit A
---------
AGREEMENT AND PLAN OF MERGER
----------------------------
THIS AGREEMENT, dated as of the 22nd day of January, 1996, by and
among Thermedics Inc., a Massachusetts corporation ("TMD") and TMO TCA
Investments Inc., a Delaware corporation ("Investments").
WHEREAS, the Articles of Organization of TMD were filed in the office
of the Secretary of State of the Commonwealth of Massachusetts on June 2,
1983, and TMD has authorized capital stock of 50,000,000 shares of common
stock, $.10 par value per share;
WHEREAS, the Certificate of Incorporation of Investments was filed in
the office of the Secretary of State of the State of Delaware on October
17, 1995, and Investments has authorized capital stock of 3,000 shares of
common stock, $.01 par value per share, all of which shares are issued and
outstanding;
WHEREAS, the registered office of TMD in the Commonwealth of
Massachusetts is located at 470 Wildwood Street, Woburn, Massachusetts
01888-1799; and the registered office of Investments is located at 1209
Orange Street, Wilmington, Delaware and the name of its registered agent is
The Corporation Trust Company;
WHEREAS, the Boards of Directors of TMD and Investments deem it
advisable and in the best interest of such corporations and their
respective shareholders that Investments be merged into and with TMD on the
terms and conditions set forth in this Agreement; and
WHEREAS , the Boards of Directors of TMD and Investments desire that
the merger provided for herein be a tax-free reorganization pursuant to
Section 368 of the Internal Revenue Code of 1986, as amended.
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, and other good and valuable
consideration, the receipt of which is acknowledged by each party hereto,
the parties hereto agree as follows:
FIRST: In accordance with this Agreement, on the Effective Date (as
defined herein), Investments shall be merged into and with TMD (hereinafter
sometimes called the Merger). TMD shall be the surviving corporation and
the separate existence of Investments shall cease as of the Merger.
SECOND: The Articles of Organization and Bylaws of TMD, in effect
immediately prior to the Merger, shall thereafter continue in full force
and effect as the Articles of Organization and Bylaws of the surviving
corporation. The directors and officers of TMD as of the Effective Date
shall be the directors and officers the surviving corporation, each to hold
office in accordance with applicable law and the Articles of Organization
and Bylaws of TMD.
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 14 of 16 Pages
THIRD: The manner of converting the outstanding shares of the capital
stock of Investments into the capital stock of TMD shall be as follows:
(a) Conversion of Investments' Shares. At the effective time of
---------------------------------
the Merger, the shares of Investments' common stock outstanding immediately
prior thereto (herein referred to collectively as the "Investments Shares")
shall, by virtue of the Merger and without any action on the part of the
holder thereof, but subject to this Section, be canceled and converted into
the right to receive such number of whole shares (rounded to the nearest
whole share) of TMD common stock, $.10 par value (the "TMD Common Stock")
as is equal to $39,925,003 divided by the average closing price of TMD
Common Stock for the five days prior to the date hereof.
(b) Payment for Investments Shares. Promptly after the listing
------------------------------
of the shares of TMD Common Stock to be issued in connection with the
Merger (the "TMD Shares") for trading upon the American Stock Exchange,
Inc. ("AMEX") and upon the proper surrender by the shareholder of
Investments (the "Shareholder") of such certificates representing
Investments Shares held by it together with appropriate tax certifications,
TMD shall cause its stock transfer agent to issue and deliver to the
Shareholder a certificate for the TMD Shares that the Shareholder is
entitled to receive. It shall be a condition of such payment and delivery
that the surrendered certificate(s) be properly endorsed or otherwise in
proper form for transfer and that the Shareholder shall pay any transfer or
other taxes required by reason of such payment or delivery or establish to
the satisfaction of TMD that such tax has been paid or is not applicable.
The date on which all of the conditions to the issuance of the certificate
representing the TMD Shares shall have been met is referred to hereinafter
as the "Payment Date."
(c) Adjustments.
-----------
(i) In the event TMD shall declare, pay, make or effect
between the date of this Agreement and the Payment Date, (A) any stock
dividend or other distribution in respect of the TMD Common Stock payable
in shares of capital stock of TMD, (B) any stock split or other subdivision
of outstanding shares of TMD Common Stock into a larger number of shares,
(C) any combination of outstanding shares of TMD Common Stock into a
smaller number of shares, (D) any reclassification of TMD Common Stock into
other shares of capital stock or securities, or (E) any exchange of the
outstanding shares of TMD Common Stock, in connection with a merger or
consolidation of TMD or sale by TMD of all or part of its assets, for a
different number of class of shares of stock or securities of TMD or for
the share of the capital stock or other securities of any other
corporation, appropriate adjustment shall be made in the number of TMD
Shares to be issued in connection with the Merger as may be required to put
the Shareholder in the same position as if the record date, with respect to
any such transaction or transactions which shall so occur, had been
immediately after the Payment Date, or otherwise to carry out the intents
and purposes of this Agreement.
(ii) In the event TMD shall declare, pay, make or effect
between the date of this Agreement and the Payment Date any dividend or
other distribution in respect of the TMD Common Stock payable in cash or
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 15 of 16 Pages
other property other than in shares of capital stock of TMD (other than
shares of the capital stock of TMD issuable pursuant to TMD's Automatic
Dividend Reinvestment Plan ("Plan Shares")), then the TMD Shares to be
issued in connection with the Merger shall be deemed to be outstanding as
of the record date with respect to any such dividend or distribution, and
the cash or other property (including Plan Shares) otherwise payable or
distributable to the Shareholder with respect to such TMD Shares shall be
held by TMD for the benefit of the Shareholder; and TMD shall take all
actions reasonably necessary to prevent such cash or other property
(including Plan Shares) from being or becoming subject to any lien,
security interest or other encumbrance not for the benefit of the
Shareholder. Upon the issuance of the TMD Shares to the Shareholder
pursuant to paragraph (b) above, such cash or other property (including
Plan Shares and together with any earnings or interest thereon) shall
likewise be distributed by TMD to the Shareholder.
FOURTH: The terms and conditions of the Merger are as follows:
(a) The Merger shall become effective upon filing a Certificate
of Merger with the Secretary of State of the State of Delaware, pursuant to
Section 252 of the General Corporation Law of the State of Delaware and the
Articles of Merger with the Secretary of State of the Commonwealth of
Massachusetts, pursuant to Section 79 of the Massachusetts Business
Corporation Law. The term "Effective Date" shall mean the date and time of
the filing of the Articles of Merger with the Secretary of State of the
Commonwealth of Massachusetts.
(b) Promptly after the Effective Date, TMD shall take all action
necessary to list the TMD Shares for trading upon AMEX in accordance with
the AMEX's Listing Standards, Policies and Requirements.
(c) The effect of the Merger shall be as provided by the
applicable provision of the Massachusetts Business Corporation Law.
(d) TMD hereby (i) agrees that it may be served with process in
the State of Delaware in any proceeding for the enforcement of any
obligation of Investments and in any proceeding for the enforcement of the
rights of a dissenting stockholder of Investments pursuant to Section 262
of the Delaware General Corporation Law; and (ii) irrevocably appoints the
Secretary of State of the State of Delaware as its agent to accept service
of process in any such proceeding.
FIFTH: Anything herein or elsewhere to the contrary notwithstanding,
this Agreement may be terminated and abandoned by the Boards of Directors
of the parties hereto at any time prior to the date that the requisite
filings are made in the offices of the Secretary of State of the State of
Delaware and the Secretary of State of the Commonwealth of Massachusetts,
respectively. This Agreement may be amended by the Board of Directors of
the parties hereto at any time prior to the date that the requisite filings
are made in the offices of the Secretary of State of Delaware and the
Secretary of State of Massachusetts, respectively, provided that an
amendment made subsequent to the approval of this Agreement by the
Shareholder shall not (1) alter or change the amount or kind of shares,
securities, cash, property and/or rights to be received in exchange for or
PAGE
<PAGE>
CUSIP No. 88355K101 13D Page 16 of 16 Pages
on conversion of all or any of the shares of Investments, (2) alter or
change any term of the Articles of Incorporation of the surviving
corporation to be effected by the Merger, or (3) alter or change any of the
terms and conditions of this Agreement if such alteration or change would
adversely affect the Shareholder.
SIXTH:
(a) This Agreement may be executed in several counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(b) TMD and Investments agree to execute and deliver such other
documents, certificates, agreements and other writings and to take such
other actions as may be necessary or desirable in order to consummate or
implement the transactions contemplated by this Agreement.
(c) This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts applicable to agreements made and to be
performed wholly within such jurisdiction, without regard to the conflicts
of laws provisions thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
THERMEDICS INC.
By: /s/ John W. Wood, Jr.
-----------------------------
Name: John W. Wood, Jr.
Title: President and Chief Executive Officer
ATTEST:
By: /s/ Sandra L. Lambert
----------------------------
Sandra L. Lambert, Clerk
TMO TCA INVESTMENTS INC.
By: /s/ John N. Hatsopoulos
-----------------------
Name: John N. Hatsopoulos
Title: President
ATTEST:
By: /s/ Sandra L. Lambert
----------------------------
Sandra L. Lambert, Secretary
AA960390049
PAGE
<PAGE>
