Exhibit 10.3
STOCK REPURCHASE AGREEMENT
by and between
THERMO TERRATECH INC.
as Seller
and
▇▇▇▇▇▇▇▇▇▇ ASSOCIATES, INC.
as Buyer
STOCK REPURCHASE AGREEMENT
This Stock Repurchase Agreement (the "Agreement") is made effective as of
the 30th day of June, 2000 by and between ▇▇▇▇▇▇▇▇▇▇ Associates, Inc., a New
Hampshire corporation (the "Company") and Thermo TerraTech Inc., a Delaware
corporation (the "Seller").
WHEREAS, prior to the completion of the transactions contemplated by this
Agreement and other agreements of the Company entered into and made effective
contemporaneously with this Agreement, the Seller is the owner of 250 shares
(the "Common Shares") of Common Stock, $1.00 par value per share (the "Common
Stock"), and 750 shares (the "Preferred Shares") of Preferred Stock, $1.00 par
value per share (the "Preferred Stock"). The Common Shares and Preferred Shares,
in the aggregate, represent all of the issued and outstanding shares of capital
stock of the Company; and
WHEREAS, the Seller desires to sell, and Company desires to repurchase,
all of the Common Shares, subject to the terms and conditions of this Agreement;
and
WHEREAS, in connection with the consummation of this Agreement, the
Company shall effect an increase in its authorized capital stock through an
amendment to its Articles of Incorporation and a stock split (the "Split")
increasing the amount of Common Shares from 250 to 33,682 and increasing the
amount of Preferred Shares from 750 to 8,518; and
WHEREAS, the Seller and the Company agree that the Preferred Shares shall
be retained by the Seller and the terms, rights and preferences of the Preferred
Stock shall be amended and restated in accordance with the terms of this
Agreement; and
WHEREAS, immediately prior to the completion of the sale and repurchase of
the Common Shares, the Company shall issue and sell to the parties listed on
Schedule A hereto, an aggregate of Thirty Three Thousand Six Hundred Eight Two
(33,682) shares of Common Stock, $0.01 par value per share, pursuant to a
private placement (the "Private Placement") to be completed in compliance with
Rule 505 of Regulation D, promulgated under the Securities Act of 1933, as
amended, and applicable state securities or so-called, blue sky laws; and
WHEREAS, the Company has established an Employee Stock Ownership Plan (the
"ESOP") to acquire Twenty Six Thousand Four Hundred (26,400) shares of Common
Stock of the Company in the Private Placement; and
WHEREAS, in order for the ESOP to have available sufficient funds to
complete its acquisition of the Common Stock in the Private Placement, the
Company, contemporaneously with the transactions contemplated by this Agreement,
is entering into Term Loans and a Revolving Line of Credit (collectively, the
"Credit Facility") with Citizen's Bank of Massachusetts (the "Bank"); and
WHEREAS, certain officers, directors, and employees of the Company (each,
an "Employee Investor") are acquiring, in the aggregate Seven Thousand Two
Hundred Eighty Two (7,282) shares of Common Stock in the Private Placement; and
WHEREAS, in connection with the completion of the Private Placement, the
Company has prepared and delivered to the ESOP and each Employee Director a
Private Placement Memorandum, dated June 20, 2000 (the "PPM"). In addition, the
ESOP and each Employee Investor has executed and delivered to the Company a
Subscription Agreement, Purchaser Questionnaire, and Investment Representation
Letter in substantially the form attached hereto as Exhibit A, Exhibit B, and
Exhibit C, respectively; and
WHEREAS, immediately prior to the closing of the Private Placement, the
Company completed the transactions with the Bank to establish the Credit
Facility, and loaned certain funds received in connection therewith to the ESOP;
and
WHEREAS, immediately after the closing of the Credit Facility and the
Private Placement, the parties desire to complete the transactions contemplated
by this Agreement; and
WHEREAS, concurrent with the consummation of the transactions contemplated
by this Agreement, the Seller is consummating a transfer of 500 Preferred Shares
(post Split) to ▇▇▇▇ ▇▇▇▇▇▇▇▇ for an aggregate purchase price of $50,000.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereby agree as follows:
1. Repurchase and Sale of the Common Shares, and Retention of Preferred
Shares and Restatement of the Terms and Preferences of the Preferred Stock.
1.1 Repurchase of the Common Shares. Subject to and upon the terms and
conditions of this Agreement, at the closing of the transactions
contemplated by this Agreement (the "Closing"), the Seller will sell,
transfer, and deliver to the Company, and the Company will purchase,
acquire, accept and pay for, all of the Common Shares, free and clear of
all Security Interests, restrictions, claims or rights of another. For
purposes of this Agreement, "Security Interests" shall mean any mortgage,
pledge, lien, encumbrance, charge or other security interests other than
(a) mechanic's, materialman's or similar liens, (b) liens for Taxes not yet
due and payable, (c) liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the ordinary course of
business and not incurred in connection with the borrowing of money; and
"Tax" shall mean any federal, state, local or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium windfall profits, environmental (including taxed under
Section 59A of the Internal Revenue Code of 1986, as amended (the "Code")),
customs, duties, capital stock, franchise, profits withholding, social
security (or similar tax), unemployment, disability, real property,
personal property, sales, use, transfer, registration, value added,
alternative or add on minimum, estimated or other tax of any kind
whatsoever, including any interest, penalty or addition thereto, whether
disputed or not.
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1.2 Consideration for the Common Shares. The aggregate consideration to be
paid by the Company for the Common Shares shall be the sum Three Million
Three Hundred Sixty-Eight Thousand Two Hundred Dollars ($3,368,200) (the
"Purchase Price"). At the Closing, the Purchase Price shall be delivered by
the Company to the Seller by wire transfer of immediately available funds
to an account designated by the Seller (the "Cash Payment").
1.3 Retention of Preferred Shares and Restatement of the Terms and
Preferences of the Preferred Stock. In addition to the repurchase of the
Common Shares at the Closing, the Company agrees that the Seller shall be
entitled to retain 8,018 Preferred Shares. Prior to the Private Placement,
the Company shall have (i) filed an Amended and Restated Articles of
Incorporation (the "Amended and Restated Articles") with the Secretary of
State of the State of New Hampshire that will provide for, among other
things, an increase in the authorized capital stock of the Company and
designation of the rights and preferences as set forth in the form of
Amended and Restated Articles of Incorporation of the Company, attached
hereto as Exhibit D, and (ii) effect a stock split to increase the amount
of Preferred Shares that shall be issued and outstanding and owned by the
Seller to Eight Thousand Eighteen (8,018) shares and. The parties
acknowledge and agree that upon completion of the transactions contemplated
hereby, the Preferred Shares will have an Original Issue Price of Eight
Hundred One Thousand Eight Hundred Dollars ($801,800).
1.4 Closing. The closing of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Green,
P.C., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00
a.m., Boston Time, on July 5, 2000 (the "Closing Date") or at such other
place, time or date as may be mutually agreed upon in writing by the
parties, but in no event later than July 7, 2000. The Closing of the
transactions shall be deemed effective as of 12:01 a.m., July 1, 2000 (the
"Effective Date").
1.5 Transfer of Certain Assets at the Closing. At the Closing, there shall
be transferred from the Company to the Seller the following assets of the
Company (the "Excluded Assets"):
(a) cash as of midnight on the day prior to the Effective Date, which
shall be subject to the Seller's normal sweep procedures from its
lockbox numbered 198575 and account numbered 3750208214 located
at the Bank of America in Atlanta, Georgia; and
(b) the intercompany receivable, with the exception of the line items
set forth on Schedule 1.5(b) hereto, owed to the Company by the
Seller or its Affiliates, as shown on the Company's April 1, 2000
Balance Sheet, as adjusted as at midnight on the day prior to the
Effective Date.
1.6 Uncleared Checks. The Seller shall retain the liability for payment
with respect to any checks of the Company written prior to the Effective
Date to pay for services or goods received in the ordinary course of
Company's business and consistent with the Company's past payment practices
prior to the Closing. The Seller shall not be liable for any checks written
to prepay for any goods or services.
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2. Representations of the Seller regarding the Seller and the Common
Shares.
The Seller represents and warrants to the Company as follows:
2.1 Organization. The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
has all requisite power and authority to own its properties, to carry on
its business as now being conducted, to execute and deliver this Agreement
and the agreements contemplated herein, and to consummate the transactions
contemplated hereby and thereby.
2.2. Ownership and Title to Common Shares. The Common Shares are not
encumbered and are freely transferable by Seller. Seller holds good and
marketable title to the Common Shares to be transferred to the Company
hereunder and no third party can claim any right thereto or make any claim
thereon. The transfer of the Common Shares to the Company pursuant to this
Agreement will vest in the Company full title to the Common Shares, free
and clear of all Security Interests, restrictions, claims or rights of
another.
2.3 Authority. Seller has full right, power, capacity and authority to
execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. This Agreement constitutes the valid and
binding obligation of Seller enforceable against it in accordance with the
terms hereof. Neither the execution, delivery and performance of this
Agreement nor the consummation of the transactions contemplated hereby will
(i) conflict with or result in a violation, breach, termination or
acceleration of, or default under (or would result in a violation, breach,
termination, acceleration or default with the giving of notice or passage
of time, or both) any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, agreement or other instrument or
obligation to which either Seller is a party or by which either Seller or
any of its properties or assets may be bound or affected or (ii) result in
the violation of any order, writ, injunction, decree, statute, rule or
regulation applicable to either Seller or its properties or assets. No
consent or approval by, or notification to or filing with, any court,
governmental authority or any third party is required in connection with
the execution, delivery and performance of this Agreement by Seller or the
consummation of the transactions contemplated hereby.
2.4 No Broker. The Seller represents and warrants that no person, firm or
corporation has acted as a broker or finder for the Seller in connection
with this Agreement or the transactions contemplated hereby and no broker
or finder is entitled to any brokerage or finder's fee or other commissions
in respect to such transactions based upon agreements, arrangements or
understanding made by or on behalf of the Seller.
3. Representations of the Seller regarding the Company.
The Seller represents and warrants to the Company as follows:
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3.1 Capitalization. Without giving effect to the transfer of Preferred
Shares to ▇▇▇▇ ▇▇▇▇▇▇▇▇ or the Private Placement, the Preferred Shares and
the Common Shares are the only issued and outstanding shares of capital
stock of the Company and are validly issued, fully paid and nonassessable
and owned, beneficially and of record, by the Seller. No shares of capital
stock of the Company are subject to, or have been issued in violation of,
preemptive rights. The Company does not have outstanding (i) any stock or
other securities convertible into or exchangeable for shares of its capital
stock or containing profit participation features, or (ii) any options,
warrants or rights to subscribe for or to purchase its capital stock or any
stock or securities convertible into or exchangeable for its capital stock.
The Company is not subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of its capital stock
of any warrants, options, or other rights to acquire its capital stock.
There are no voting agreements, voting trusts or other agreements
(including, but not limited to, contractual or statutory preemptive rights
or cumulative voting rights), commitments or understandings with respect to
the voting or transfer of the capital stock of the Company. To the Seller's
knowledge, all issuances, sales and repurchases by the Company of its
shares of capital stock have been effected in compliance with all
applicable laws, including, without limitation, applicable Federal and
state securities laws.
3.2 Litigation. There is no action, suit, investigation or proceeding to
which the Company is a party pending or, to the Seller's knowledge,
threatened before any court or governmental agency, authority, body or
arbitrator that could reasonably be expected to have a material adverse
effect on the business, operations or financial condition of the Company
("Material Adverse Effect"). The Company has not been permanently or
temporarily enjoined by any order, judgment or decree of any court or any
governmental agency, authority or body from engaging in or continuing any
conduct or practice in connection with its business. To the Seller's
knowledge there is not in existence on the date hereof any order, judgment
or decree of any court, tribunal or agency naming the Company or enjoining
or requiring the Company to take any action of any kind with respect to its
business.
3.3 Consents and Approvals. The execution and delivery of this Agreement by
the Seller does not, and the performance of the transactions contemplated
hereby by the Seller will not, require any filing with or notification to,
or any consent, approval, authorization or permit from, any governmental or
regulatory authority or any other person except where failure to obtain
such consents, approvals, authorizations or permits, or to make such
filings or notifications (i) would not prevent or delay the consummation of
the transactions contemplated by this Agreement, and (ii) would not have a
Material Adverse Effect on the Company. Except as set forth in this Section
3.3, the Seller does not make any representation or warranty as to any
requirement that may exist for the Company to give any notice to, or obtain
any consent of, any third party in order to consummate the transactions
contemplated by this Agreement.
3.4 Minute Books. To the Seller's knowledge, the minute books of the
Company contain complete and correct copies of the minutes of each meeting
and each action by written consent of its Board of Directors or
stockholders, and to the Seller's knowledge the stock ledger of the Company
contains a complete and correct record of all issuances and transfers of
capital stock of the Company.
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3.5 Intellectual Property Matters .
(a) To the Seller's knowledge, the Company has all right, title and
interest, free and clear of any liens, charges, encumbrances,
restrictions, royalties or any clams of ownership by third
parties to U.S. Patent No. 4,970,988 issued November 20, 1990 and
Canadian Patent No. 2,016,607 issued June 30, 1992 (the
"Company's Patent"), except for (i) a clerical error in
recordation of the U.S. Patent as having been assigned to
▇▇▇▇▇▇▇▇▇▇ Associates, Inc., a Delaware corporation (the "Patent
Recordation Error"), and (ii) a security assignment recorded
against the U.S. Patent held by Mellon Bank, N.A. as successor to
Meritor Savings Bank, dated May 19, 1992 and a security
assignment recorded against the Canadian Patent held by Meritor
Savings Bank dated October 27, 1992 (the "Patent Security
Interests").
(b) To the Seller's knowledge there exists no pending or anticipated
litigation, actions, lawsuits or claims, including, without
limitation, the filing or threatened filing, whether voluntary or
involuntary, of insolvency or bankruptcy proceedings or
forfeiture proceedings against the Company, claims of
infringement or misappropriation, or other claims material and
adverse to the ownership rights of the Company with respect to
the Company's Patent.
3.6 Taxes . To the Seller's knowledge, the Seller or its affiliates, on
behalf of the Company, has timely filed all Federal, state, county, local
and foreign Tax returns which it is required to have filed on behalf of the
Company, and such returns are complete and correct in all material
respects. To the Seller's knowledge, there are no unexpired waivers of any
statute of limitations with respect to any Taxes relating to the Company or
the Company's assets, and the Seller is not a party to any action or
proceeding by any governmental authority for the collection or assessment
of Taxes relating to the Company or the Company's assets. To the Seller's
knowledge, the Company is not currently a beneficiary of any extension of
time within which to file any Tax return, and no claim has ever been made
by an authority in a jurisdiction where the Company does not file a Tax
return that it is or may be subject to taxation by that jurisdiction.
3.7 Insurance Policies . The insurance policies of the Seller or its
affiliates that relate to the business of the Company are in full force and
effect, and the Seller is not in default under any of them.
3.8 Employee Benefits.
(a) To the knowledge of the Seller, the Thermo Electron Corporation Choice
Plan (the "Choice Plan") (and each related trust, insurance contract,
or fund) complies in form and in operation in all respects with the
applicable requirements of ERISA and the Code, except where the
failure to comply would not have a material adverse effect on the
financial condition of the Company taken as a whole.
(b) No action, suit, proceeding, hearing, or investigation with respect to
the administration or the investment of the assets of the Choice Plan
(other than routine claims for benefits) is pending, except where the
action, suit, proceeding, hearing, or investigation would not have a
material adverse effect on the financial condition of the Company
taken as a whole.
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3.9 Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF THE SELLER
CONTAINED IN THIS AGREEMENT, THE SELLER DISCLAIMS ALL WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. FURTHER, ANY OF
THE FOREGOING REPRESENTATIONS IN SECTION 2 OR 3 THAT ARE UNTRUE OR
INACCURATE, THE UNTRUTHFULNESS OR INACCURACY OF WHICH THE COMPANY OR ANY OF
THE COMPANY'S MANAGEMENT HAVE KNOWLEDGE ON THE DATE HEREOF, SHALL BE DEEMED
TO BE AMENDED OR MODIFIED TO THE EXTENT NECESSARY TO RENDER IT CONSISTENT
WITH THE COMPANY'S KNOWLEDGE. THE "COMPANY'S KNOWLEDGE" SHALL MEAN THE
ACTUAL KNOWLEDGE OF THE COMPANY'S SENIOR LEVEL MANAGEMENT, CONSISTING OF
THE FOLLOWING INDIVIDUALS, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, REGARDING THE NATURE, SCOPE AND DEGREE OF THE UNTRUTHFULNESS OR
INACCURACY OF ANY OF THE REPRESENTATION OR WARRANTIES PROVIDED IN SECTION 2
OR 3.
4. Representations of the Company.
The Company represents and warrants to the Seller as follows:
4.1 Organization . The Company is a New Hampshire corporation duly
organized, validly existing and in good standing under the laws of the
State of New Hampshire, and has all requisite power and authority to own
its properties and to carry on its business as now being conducted, to
execute and deliver this Agreement and the agreements contemplated herein,
and to consummate the transactions contemplated hereby and thereby. The
Company is duly qualified to do business as a foreign corporation in those
jurisdictions in which the conduct of the Company requires the Company to
be so qualified, except where the failure to be so qualified does not have
a Material Adverse Effect on the Company.
4.2 Authorization .
(a) The execution and delivery by the Company of this Agreement and the
agreements provided for herein, and the agreements related to the
Private Placement and the consummation by the Company of the
transactions contemplated hereby and thereby, have been duly
authorized by all requisite corporate action. This Agreement and all
such other agreements and obligations entered into and undertaken in
connection with the transactions contemplated hereby and by the
Private Placement to which the Company is a party constitute the valid
and legally binding obligations of it, enforceable against the Company
in accordance with their respective terms.
(b) The execution, delivery and performance of this Agreement and the
agreements provided for herein, and the consummation by the Company of
the transactions contemplated hereby and thereby, will not, with or
without the giving of notice or the passage of time or both, (a)
violate the provisions of any law, rule or regulation applicable to
the Company; (b) violate the provisions of the charter or by-laws of
the Company, or the plan and trust documents under which the ESOP is
maintained; (c) violate any judgment, decree, order or award of any
court, governmental body or arbitrator; or (d) conflict with or result
in the breach or termination of any term or provision of, or
constitute a default under, or cause any acceleration under, or cause
the creation of any lien, charge or encumbrance upon the properties or
assets of the Company pursuant to any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company is a party
or by which the Company is or may be bound.
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(c) The retention of the Preferred Shares and the amendment to the terms,
rights and preferences of the Preferred Stock in accordance with this
Agreement, and the issuance, sale and delivery of the shares of Common
Stock issuable upon conversion of the Preferred Shares (the
"Conversion Shares") will be prior to issuance duly authorized and
reserved for issuance, as the case may be, by all necessary corporate
action on the part of the Company. The Preferred Shares when so
issued, sold and delivered in accordance with the provisions of this
Agreement, and the Conversion Shares, when issued, will be duly and
validly issued, fully paid and non-assessable, free and clear of all
Security Interests, restrictions, claims or rights of another. No
consent, approval or authorization of, or designation, declaration or
filing with, any governmental authority or any other person or entity
is required of the Company in connection with the issuance, sale and
delivery of the Preferred Shares in accordance with the terms of this
Agreement.
(d) No consents or approvals of third parties are required in connection
with the consummation by the Company of the transactions contemplated
by this Agreement.
4.3 Financial Capability . Upon closing of the Credit Facility and the
Private Placement, the Company will have all funds necessary to pay the
Cash Payment and its related fees and expenses (and will provide evidence
thereof to the Seller), will have the financial capacity to perform all of
its other obligations under this Agreement, will have no contemplation of
insolvency, and will have no intent to hinder, delay or defraud any of its
or the Company's present or future creditors. The Company, immediately
after the Closing, will be solvent, will be able to meet its obligations
and debts as they become due, the value of the Company's assets at such
time will exceed the Company's liabilities, and the Company will have
adequate capital for the conduct of its business.
4.4 Credit Facility . Immediately prior to the Closing, the Company shall
have duly executed and delivered to the Bank the necessary documents and
agreements to complete the Credit Facility and provide funding to the ESOP.
The Credit Facility has been duly authorized by all necessary corporate
action and is an enforceable obligation of the Company.
4.5 Private Placement . The Company hereby represents and warrants to the
Seller the following in connection with the Private Placement:
(a) Immediately prior to the Closing, the Company shall have completed the
Private Placement, and in connection therewith, shall have received
from the ESOP and each Employee Investor a duly executed Subscription
Agreement, Purchaser Questionnaire, and Investor Representation
Letter;
(b) The Private Placement has been conducted in compliance with applicable
Federal and state securities, or so-called Blue Sky, laws;
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(c) The funds received by the Company in the Private Placement are being
used to fund a portion of the Cash Payment due to the Seller under
this Agreement;
(d) In connection with the Private Placement, the Company prepared and
distributed to each Employee Investor the PPM and have provided to
each Employee Investor an opportunity to ask management questions
regarding the Private Placement, the Company, the ESOP, the Credit
Facility, the PPM, and the transactions contemplated hereby. The PPM
does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements contained
therein not misleading. There is no material fact that has not been
disclosed by the Company to the Employee Investors or ESOP that
materially adversely effect or could reasonably be anticipated to
materially adversely effect the Company's ability to consummate the
transactions contemplated hereby.
4.6 No Broker . The Company represents and warrants that no person, firm or
corporation has acted as a broker or finder for the Company in connection
with this Agreement or the transactions contemplated hereby and no broker
or finder is entitled to any brokerage or finder's fee or other commissions
in respect to such transactions based upon agreements, arrangements or
understanding made by or on behalf of the Company. The Company agrees to
indemnify and hold harmless the Seller against any claims or liabilities
asserted against it by any person acting or claiming to act as a broker or
finder on behalf of the Company.
5. Certain Covenants.
5.1 Confidentiality . All information not previously disclosed to the
public or generally known to the persons engaged in the respective
businesses of the Company or the Seller that shall have been furnished by
the Company or the Seller to the other party in connection with the
transactions contemplated hereby or as provided pursuant to this Section 5
shall not be disclosed to any other person other than their respective
employees, directors, attorneys, accountants, lenders or financial advisors
or other than as contemplated herein. In the event that the transactions
contemplated by this Agreement shall not be consummated, all such
information which shall be in writing shall be returned to the party
furnishing the same, including, to the extent reasonably practicable, all
copies or reproductions thereof which may have been prepared, and neither
party shall at any time thereafter disclose to any third parties, or use,
directly or indirectly, for its own benefit, any such information, written
or oral, about the business of the other party hereto.
5.2 Public Announcements. Except as otherwise required by law, the parties
agree that any and all general public pronouncements or other general
public communications concerning this Agreement and the transactions
contemplated hereby, and the timing, manner and content of such
disclosures, shall be subject to the mutual agreement of the Seller and the
Company; provided, however, that another party may make any public
disclosure that it believes in good faith is required by applicable law or
any listing or trading agreement concerning its publicity-traded securities
(in which case the disclosing party will use its best efforts to advise the
other party prior to making the disclosure).
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6. Closing Deliveries of the Seller. At the Closing, the Company shall
receive documents, instruments or certificates as the Company may reasonably
request including, without limitation, the following:
6.1 Secretary's Certificate . A certificate signed by the Secretary or
Assistant Secretary of the Seller attesting to the authenticity of the
resolutions authorizing the transactions contemplated by this Agreement and
the incumbency of the Seller's officers.
6.2 Good Standing and Foreign Qualification Certificates. Certificates of
the Secretary of State of the State of New Hampshire as to the legal
existence and good standing of the Company in New Hampshire and the
certificates of the Secretary of State of each of the following states as
to the foreign qualification therein: Florida, Georgia, Illinois, Iowa,
Maine, Maryland, Massachusetts, Michigan, Mississippi, New Jersey, New
York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina,
Texas, Virginia, West Virginia and Wisconsin.
6.3 Consents of Third Parties . Copies of all requisite consents and
approvals of all lenders, lessors and other third parties whose consent or
approval is required in order for the Seller to consummate the transactions
contemplated by this Agreement.
6.4 Stock Certificates . The stock certificate(s) representing the Common
Shares, duly endorsed to the Company in accordance with this Agreement.
6.5 Charter Document. A certified copy of the Amended and Restated Articles
of Incorporation of the Company, duly filed with and accepted by the
Secretary of State of the State of New Hampshire establishing the terms,
rights and preferences of the Preferred Shares.
6.6 Cross Receipt . A cross receipt executed by the Seller (the "Cross
Receipt"), in substantially the form attached hereto as Exhibit E.
6.7 South Carolina Real Estate Lease. The Seller shall execute and deliver
an assumption of the Amended and Restated Lease Agreement between ▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇'▇▇▇▇ and ▇▇▇▇ ▇. ▇'▇▇▇▇ and Environmental &
Chemical Sciences, Inc. dated as of January 28, 1988 (the "South Carolina
Lease") in form and substance satisfactory to the Company.
7. Closing Deliveries of the Company . At the Closing, the Seller shall
receive all documents, instruments or certificates as the Seller may reasonably
request including, without limitation, the following:
7.1 Secretary's Certificate . A certificate signed by the Secretary or
Assistant Secretary of the Company attesting to the authenticity of the
resolutions authorizing the transactions contemplated by this Agreement and
the incumbency of the Company's officers.
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7.2 Good Standing and Foreign Qualification Certificates.
(a) Certificates of the Secretary of State of the State of New Hampshire
as to the legal existence and good standing of the Company in New
Hampshire and the certificates of the Secretary of State of each of
the following states as to the foreign qualification therein: Florida,
Georgia, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan,
Mississippi, New Jersey, New York, North Carolina, Oregon,
Pennsylvania, Rhode Island, South Carolina, Texas, Virginia, West
Virginia and Wisconsin. (b) A certificate of the ESOP trustee
pertaining to the proper establishment and legal existence of the ESOP
trust.
7.3 Consents of Third Parties. Copies of all requisite consents and
approvals of all lenders, lessors and other third parties whose consent or
approval is required in order for the Company to consummate the
transactions contemplated by this Agreement.
7.4 Cash Payment. The Cash Payment.
7.5 Stock Certificate . A certificate representing all of the Preferred
Shares.
7.6 Charter Document. A certified copy of the Amended and Restated Articles
of Incorporation of the Company, duly filed with and accepted by the
Secretary of State of the State of New Hampshire establishing the terms,
rights and preferences of the Preferred Shares.
7.7 Cross Receipt. The Cross Receipt executed by the Company.
7.8 Credit Facility . Evidence satisfactory to the Seller that all
documents related to the completion of the Credit Facility have been duly
executed and delivered by the Company.
7.9 Private Placement. Evidence satisfactory to the Seller that all
documents related to the completion of the Private Placement have been duly
executed and delivered by the Company, the ESOP and each Employee Investor.
7.10 Motor Vehicle Leases. The Company shall execute and deliver an
assumption of the motor vehicle leases identified in Schedule 7.10 (the
"Motor Vehicle Leases") and all obligations and liabilities in connection
therewith in form and substance satisfactory to the Seller and shall
provide evidence of having named Thermo Electron Corporation as additional
insured on each insurance policy for each vehicle leased thereunder.
8. Indemnification.
11
8.1 By the Seller. The Seller hereby agrees to indemnify and hold harmless
the Company from and against all claims, damages, losses, liabilities,
obligations, judgments, liens, injunctions, charges, orders, decrees,
rulings, assessments, penalties, fines, costs and expenses (including,
without limitation, settlement costs and any reasonable legal, accounting
or other expenses for investigating or defending any actions or threatened
actions) (collectively, the "Losses") as a result of, resulting from,
arising out of, related to or in connection with any breach of any
representation or warranty, or non-fulfillment or non-performance on the
part of the Seller of any covenant or agreement contained in this
Agreement. Notwithstanding any of the foregoing, the Company shall not be
entitled to indemnification hereunder with respect to any breach of any
representation or warranty contained in this Agreement by the Seller where
it is shown by a preponderance of the evidence that one or more of the
Company's executive officers has actual knowledge prior to the Closing Date
that such representation or warranty of the Seller is false or inaccurate
when and as made hereunder.
8.2 By the Company. The Company hereby indemnifies and holds harmless the
Seller from and against all Losses in connection with:
(a) any breach of any representation or warranty, or non-fulfillment or
non-performance on the part of the Company of any covenant or
agreement, contained in this Agreement;
(b) any claim for severance payments or other liabilities (including,
without limitation, any liability for wrongful discharge) that may be
due to any employee of the Company by reason of (i) the termination of
the employment of any of the employees by the Company on or after the
Closing Date or (ii) the constructive dismissal of any of the
employees resulting from differences between the terms and conditions
of their employment of the Company after the Closing and those in
effect prior to the Closing;
(c) any and all liabilities and obligations of the Company under or
relating to any of the contracts or projects of the Company,
irrespective of whether such liabilities or obligations accrue prior
to or subsequent to the Closing or relate to the period of time prior
to or subsequent to the Closing;
(d) any and all liabilities and obligations of the Seller under or
relating to the leases for the Company's various office spaces as
identified on Schedule 8.2 hereto;
(e) any and all other liabilities and obligations of the Seller (i) under
or relating to compliance with any statute, regulation or rule
relating to the protection of the environment or to the generation,
transportation, storage, treatment, disposal or management of any
"hazardous material" (as so defined under the Federal Hazardous
Materials Transportation Act, codified within 49 U.S.C. Sections
5101-5127 and its implementing regulations, or under any similar
federal, state or local law); "hazardous waste" (as so defined under
the Federal Solid Waste Disposal Act as amended by the Resource
Conservation and Recovery Act, as codified within 42 U.S.C. Sections
6901-6992k and its implementing regulations, or under any similar
federal, state or local laws); and/or any "hazardous substances" (as
listed or identified pursuant to the Comprehensive Environmental
Response, compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986 in Section 302.4
of the National Contingency Plan (Title 40 of the Code of Federal
Regulations) as in effect as of the Closing Date, or under any similar
federal, state or local laws; and (ii) all other liabilities and
obligations of the Seller resulting from the conduct of the Company's
business prior to the Effective Date;
12
(f) any and all liabilities, claims, actions, obligations and the like of
the Company related to or in connection with the Credit Facility;
(g) any and all liabilities, claims, actions, obligations and the like
related to or in connection with the Private Placement, including,
without limitation, the PPM and compliance with applicable Federal and
state securities laws; and
(h) any and all liabilities, claims, actions, obligations and the like of
the related to or in connection with the operation of the business of
the Company, including but not limited to the Motor Vehicle Leases and
all insurance obligations and claims with respect thereto, on and
after the Effective Date.
8.3 Claims for Indemnification. Whenever any claim shall arise for
indemnification under this Section 8, the Company or the Seller, as the
case may be (the party seeking such indemnification, the "Indemnified
Party"), shall promptly notify the other party or parties hereto (the party
or parties from whom indemnification is sought, the "Indemnifying Party"),
and such Indemnifying Party's counsel pursuant to Section 11 herein, in
writing (the "Indemnification Notice") of the claim, which writing shall
include the facts constituting the basis for such claim, the specific
section of this Agreement upon which the claim is based and an estimate, if
possible, of the amount of damages suffered by the Indemnified Party. In
the event of any such claim for indemnification hereunder resulting from or
in connection with any claim or legal proceedings by a third party (a
"Third Party Claim"), the Indemnification Notice shall specify, if known,
the amount or an estimate of the amount of the liability arising therefrom
and shall attach all correspondence and demands from such third party. In
the event that any claim for indemnification involves a matter other than a
Third Party Claim, the Indemnifying Party shall have 30 days from receipt
of the Indemnification Notice to object to such claim by delivery of a
written notice of such objection to the Indemnified Party specifying in
reasonable detail the basis for such objection. Failure to timely object
shall constitute a final and binding acceptance of the claim for
indemnification by the Indemnifying Party and the claim shall be paid in
accordance with Section 8.5 hereof. The Indemnified Party shall not settle
or compromise any claim by a third party for which it is entitled to
indemnification hereunder without the prior written consent, which shall
not be unreasonably withheld or delayed, of the Indemnifying Party;
provided, however, that if suit shall have been instituted against the
Indemnified Party and the Indemnifying Party shall not have taken control
of such suit within ten (10) days after notification thereof, as provided
in Section 11 of this Agreement, the Indemnified Party shall have the right
to settle or compromise such claim upon giving notice to the Indemnifying
Party, so long as such settlement includes a full release of the
Indemnifying party from such Third Party Claim.
8.4 Defense by the Indemnifying Party.
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(a) In connection with any claim which may give rise to indemnity
hereunder resulting from or arising out of any claim or legal
proceeding by a person other than the Indemnified Party, the
Indemnifying Party, at the sole cost and expense of the Indemnifying
Party, may, upon written notice given to the Indemnified Party, assume
the defense of any such claim or legal proceeding if the Indemnifying
Party acknowledges to the Indemnified Party in writing the obligation
of the Indemnifying Party to indemnify the Indemnified Party with
respect to all elements of such claim. If the Indemnifying Party
assumes the defense of any such claim or legal proceeding, the
Indemnifying Party shall select counsel to conduct the defense of such
claims or legal proceedings (which may include ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Green,
P.C.) and, at the sole cost and expense of the Indemnifying Party,
shall take all steps it deems necessary or appropriate in the defense
or settlement thereof. The Indemnifying Party shall not consent to a
settlement of, or the entry of any judgment arising from, any such
claim or legal proceeding without the prior written consent of the
Indemnified Party (which consent shall not be unreasonably withheld or
delayed), unless such settlement or judgement includes a full release
of the Indemnified Party from such Third Party Claim. The Indemnified
Party shall be entitled to participate in (but not control) the
defense of any such action, with its own counsel and at its own
expense. If the Indemnifying Party does not assume the defense of any
such claim or litigation resulting therefrom within ten (10) days
after the date it receives written notice of such claim from the
Indemnified Party: (a) the Indemnified Party may defend against such
claim or litigation in such manner as it may deem necessary or
appropriate, including, but not limited to, settling such claim or
litigation (subject to the last sentence of Section 8.3), on such
terms as the Indemnified Party may deem appropriate, and (b) the
Indemnifying Party shall be entitled to participate in (but not
control) the defense of such action, with its counsel and at its own
expense. If the Indemnifying Party thereafter seeks to question the
manner in which the Indemnified Party defended such Third Party Claim
or the amount or nature of any such settlement, the Indemnifying Party
shall have the burden to prove by a preponderance of the evidence that
the Indemnified Party did not defend or settle such Third Party Claim
in a reasonably prudent manner.
(b) The Indemnifying Party and the Indemnified Party shall cooperate with
each other in all reasonable respects in connection with the defense
of any Third Party Claim, including making available records relating
to such claim and furnishing employees of the Indemnified Party as may
be reasonably necessary for the preparation of the defense of any such
Third Party Claim or for testimony as witnesses in any proceeding
relating to a Third Party Claim.
8.5 Payment of Indemnification Obligation . Upon a final determination of
an indemnification claim made by the Indemnified Party, whereby such final
determination is by reason of (i) a failure of the Indemnifying Party to
timely object to an Indemnification Notice or (ii) the mutual agreement of
the Indemnifying Party and the Indemnified Party, or (iii) a final award or
judgment pursuant to Section 10 hereof, then the amount of the Losses
stated in such claim or otherwise agreed to or awarded, as the case may be,
shall be paid by the Indemnifying Party to the Indemnified Party payment in
cash or by cashier's check or by wire transfer of immediately available
funds.
14
8.6 Survival of Representations; Claims for Indemnification . Unless
otherwise provided herein, all representations and warranties contained in
this Agreement shall survive until the 18 month anniversary of the Closing
Date and any claim for indemnification must be made on or prior to such 18
month anniversary, except for (i) claims, if any, asserted in writing prior
to such date and identified as a claim for indemnification pursuant to this
Section 8, which shall survive until finally resolved and satisfied in
full, (ii) claims based upon fraud or intentional misrepresentation, which
shall survive indefinitely, or (iii) claims related to the Motor Vehicle
Leases, which shall survive until such leases are terminated or expired and
of no further force or effect.
8.7 Limitations on Indemnification Obligations.
(a) The Indemnified Party shall not be entitled to recover from the
Indemnifying Party under this Section 8 unless and until the aggregate
amount of all Losses by the Indemnified Party under this Section 8
exceeds $100,000 (the "Basket"). The parties hereto agree that once
the aggregate amount of Losses by any Indemnified Party exceeds the
Basket, the Indemnified Party shall be entitled to indemnity for the
amount of all claims made by the Indemnified Party in excess of the
Basket. The Indemnifying Party shall not be obligated to pay any
Losses under this Section 8 once the aggregate amount of all Losses
paid by such Indemnifying Party under this Section 8 equals $1,500,000
(the "Cap"). Notwithstanding the foregoing, the Cap shall not apply to
(i) any indemnification claims based upon fraud or intentional
misrepresentation and the Indemnified Party shall be entitled to
recovery for all Losses in connection with claims pursuant to fraud or
intentional misrepresentation, (ii) any indemnification claims based
upon Section 2.2, (iii) any indemnification claims based upon failure
of the Company to perform or pay the liabilities of the Company after
the Effective Date as and when due, and (iv) any indemnification
claims based upon Section 8.2(b-g). In the case of 8.7(a)(ii) the
Company shall be entitled to recover all Losses resulting therefrom
and in either case of 8.7(a)(iii) or 8.7(a)(iv) the Seller shall be
entitled to recover for all Losses resulting therefrom.
(b) Subject to the provisions of this Section 8, an Indemnified Party
shall be entitled to recover the full amount of any Losses incurred
due to the matter for which indemnification is sought, but any
recovery shall be net of any economic benefit to which the Indemnified
Party is entitled due to such Losses, including, without limitation,
(i) any tax refund, reduction or benefit and (ii) any insurance
proceeds (excluding self-insured amounts and deductible amounts). In
no event shall any Indemnified Party be awarded punitive or multiple
damages.
8.8 Liability for Taxes. The following provisions shall govern the
allocation of responsibility as between Company and Seller for certain tax
matters prior and subsequent to the Effective Date:
(a) Allocation of Taxes; Seller's Indemnification for Taxes of the Company
Prior to the Effective Date. Notwithstanding anything herein to the
contrary, the Seller shall be responsible for all Taxes imposed on the
Company or any affiliated group in which the Company is or was a
member for all taxable periods, or portions of taxable periods, ending
before or as of the close of business on the Effective Date (the
"Seller Taxes"). Whenever in accordance with this Section 8.8, the
Seller shall be required to pay the Company the Seller Taxes, subject
to the parties' right to dispute the amount of such Taxes in good
faith with the appropriate taxing authority, such payments shall be
made on the later of (i) ten (10) days after requested or (ii) ten
(10) days before the requesting party is required to pay or cause to
be paid the related Tax liability and the parties shall treat any such
payments as a purchase price adjustment for tax purposes. Where the
Seller Taxes are calculated on the basis of a period which included a
day after the Effective Date, such Seller Taxes shall be calculated on
the basis of the taxable income of the Company as though the taxable
year of the Company terminated at the close of business on the
Effective Date. Seller shall indemnify and hold the Company harmless
from and against all liabilities for the Seller Taxes to the extent
such Taxes have not been paid.
15
(b) Returns for Tax Periods Ending on or before the Effective Date. The
Seller shall file (or cause to be filed) any Tax Returns of the
Company for Tax periods ending on or before the Effective Date for
which Tax Returns shall not have been filed before the Effective Date.
Such Tax Returns shall be prepared on a basis consistent with past
practice to the extend such past practice is consistent with all
federal, state, local and foreign Tax laws, rules and regulation.
(c) Retention of Records. Each of the Company and the Seller shall retain
all books, records and other data pertaining to Tax matters for all
open periods through the Effective Date. In particular, the Seller and
the Company shall retain all Tax Returns, schedules and work papers,
and all material records and other documents relating thereto with
respect to the operations of the Company prior to the Effective Date,
until the expiration of the statute of limitations (and, to the extent
notified by the Seller, any extensions thereof) of the respective Tax
periods.
(d) Seller Indemnification for Taxes. The Company shall indemnify and hold
the Seller and any Affiliates of the Seller harmless from liability
for any Taxes attributable to the operations of the business of the
Company after the Effective Date.
9. Post-Closing Agreements .
9.1 The Seller's Post-Closing Agreements. The Seller and the Company agree
that from and after the Closing Date:
(a) Proprietary Information . The Seller shall hold in confidence all
knowledge and information of a secret or confidential nature with
respect to the terms of this Agreement or the business of the Company
and not to disclose, publish or make use of the same without the
consent of the Company, except to the extent that such information
shall have become public knowledge other than by breach of this
Agreement by the Company. The Seller agrees that the remedy at law for
any breach of this Section 9.1(a) would be inadequate and that the
Company shall be entitled to injunctive relief in addition to any
other remedy it may have upon breach of any provision of this Section
9.1.
(b) Sharing of Data . The Seller shall have the right for a period of
three (3) years following the Closing Date to have reasonable access
to such books, records and accounts, including financial and tax
information, correspondence, production records, employment records
and other similar information of the Company for the limited purposes
of concluding its involvement in the business of the Company prior to
the Closing Date and for complying with its obligations under
applicable securities, tax, environmental, employment or other laws
and regulations. The Company shall have the right for a period of
three (3) years following the Closing Date to have reasonable access
to those books, records and accounts, including financial and tax
information, correspondence, production records, employment records
and other similar records which are retained by the Seller to the
extent that any of the foregoing relates to the business of the
Company or is otherwise needed by the Company in order to comply with
its obligations under applicable securities, tax, environmental,
employment or other laws and regulations.
16
(c) Further Assurances . At any time and from time to time after the
Closing, at the Company's request and without further consideration,
the Seller shall promptly execute and deliver such instruments of
sale, transfer, conveyance, assignment and confirmation, and take all
such other action as the Company may reasonably request, to more
effectively to transfer, convey and assign to the Company, and to
confirm the Company's title to, among other things the Common Shares
and the Company's Patent.
(d) Transition. The Seller will not take any action that is designed or
intended to have the effect of discouraging any lessor, licensor,
customer, supplier, or other business relationship of the Company from
maintaining the same business relationships with the Company after the
Closing as it maintained with the Company prior to the Closing.
(e) Covenant Not to Compete. For a period of three (3) years from and
after the Closing Date (the "Restricted Period"), the Seller will not
engage directly or indirectly in any business that the Company
conducts as of the Closing Date in any geographic area in which any of
the Company conducts that business as of the Closing Date; provided,
however, that ownership of less than 5% of the outstanding stock of
any publicly traded corporation shall not be deemed to be engaged in
any business solely by reason thereof. If the final judgment of a
court of competent jurisdiction declares that any term or provision of
this Section 9.1(e) is invalid or unenforceable, the parties agree
that the court making the determination of invalidity or
unenforceability shall have the power to reduce the scope, duration,
or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest
to expressing the intention of the invalid or unenforceable term or
provision, and this Agreement shall be enforceable as so modified
after the expiration of the time within which the judgment may be
appealed.
(f) Non-Solicitation. Without limiting the generality of the provisions of
Section 9.1(e), the Seller hereby agrees that during the Restricted
Period it will not, without Company's prior written consent, directly
or indirectly, solicit, or participate as employee, agent, consultant,
stockholder, director, manager, partner or in any other individual or
representative capacity in any business which solicits, business from
any person, firm, corporation or other entity which is or was a
customer of the Company during the two (2) year period preceding the
date of such solicitation, or from any successor in interest to any
such person, firm, corporation or other entity, in any case for the
purpose of securing business or contracts related to the business of
the Company. Notwithstanding the foregoing, the Seller shall not be in
violation of this Section 9.1(f) as a result of its conducting its
ongoing operations in the ordinary course of business and as a result
of which the Seller may otherwise be deemed to have violated Section
9.1(f).
17
(g) 401 (k) Plan.
(i) Participation. Effective as of the Closing Date, all employees of
the Company who are continuing as employees of the Company after
the Closing (the "Transferred Employees") shall cease
participation in the Choice Plan. As soon as practicable
following the Closing, the Company shall designate, or establish,
a savings plan, qualified under Sections 401(a) and 401(k) of the
Code, and a trust thereunder that is exempt from tax under
Section 501(a) of the Code (collectively, the "Company's 401(k)
Plan"), and shall allow all Transferred Employees then employed
by the Company and previously eligible to participate in the
Choice Plan to participate in Company's 401(k) Plan on the same
terms and conditions as apply to other similarly situated
employees of Company.
(ii) 401(k) Transfer. As soon as practicable after the designation or
establishment of the Company's 401(k) Plan, and upon (i) evidence
reasonably satisfactory to the Seller, which may be in the form
of an opinion of the Company's counsel, that the Company's 401(k)
Plan is qualified under Section 401(a) of the Code and exempt
from tax under Section 501(a) of the Code, evidence reasonably
satisfactory to the Company, which may be in the form of an
opinion of the Seller's counsel, that the Choice Plan is
qualified under Section 401(a) of the Code and exempt from tax
under Section 501(a) of the Code, and (ii) satisfaction of any
other applicable legal requirements to such transfer, the Seller
shall cause the Choice Plan to transfer to the trust established
under the Company's 401(k) Plan, in cash or in other property
reasonably acceptable to the Company's 401(k) Plan's trustee, the
full account balances of all Transferred Employees, determined as
of a date that is as close as is reasonably practicable to the
date of transfer and determined without regard to any applicable
vesting schedule under the Choice Plan.
(iii)Effect of Transfer - Indemnification. The Seller and the Company
agree that the transfer of the Choice Plan assets and liabilities
contemplated by this Section 9.1(g) is intended to comply with
Section 414(l) of the Code and any other applicable legal
requirements for such a transfer. Upon the transfer, the Company
shall indemnify and hold harmless the Choice Plan and the Seller,
as well as their respective affiliates, directors, officers,
employees, agents and fiduciaries, from and against all losses,
liabilities and expenses, including reasonable expenses and fees
of counsel, attributable to any action or inaction of the Company
with respect to the account balances and liabilities transferred
to the Company's 401(k) Plan.
(h) South Carolina Lease. The Company and Seller shall notify vendors and
service providers of utilities, supplies and maintenance with respect to
the property covered by the South Carolina Lease of the transfer of the
lease and cause all invoices or accounts related thereto to run to the
Seller.
(i) Company's Patent. Within a reasonable time after the Closing, the
Seller shall deliver to the Company the filings necessary for the Company
to correct the Patent Recordation Error and remove the Patent Security
Interests, provided that the Company provides reasonable assistance and
cooperation in connection therewith.
18
9.2 The Company's Post-Closing Agreements. The Company agrees that from and
after the Closing Date:
(a) Health Insurance. Effective as of Closing, the Company shall establish
a new group health insurance plan or plans or designated pre-existing
group health insurance plan or plans (the "Company's Medical Plan")
that will provide coverage to all Transferred Employees and their
dependents currently eligible under a group health insurance plan
maintained by the Seller or by the Company prior to the Closing on
terms and conditions determined by the Company as appropriate for the
Company's employees following the Closing. Notwithstanding the
preceding sentence and notwithstanding the date an actual claim is
submitted, the applicable health plan of the Seller shall retain
responsibility for all eligible services or payments provided to
employees of the Company (or their dependents) under any such plan,
whether maintained by the Seller or the Company, prior to the Closing
Date, and Company's Medical Plan shall be responsible for all eligible
services or payments provided to employees of the Company (or their
dependants) on or after the Closing Date.
(b) Further Assurances. At any time and from time to time to time after
the Closing, at the Seller's request and without further
consideration, the Company shall promptly and deliver such instruments
or documentation, and take all such other action as the Seller may
reasonably request, to more effectively confirm the Seller's title to
the Preferred Shares.
(c) Motor Vehicle Leases. Within 30 days after the Closing, the Company
shall assume the Motor Vehicle Leases directly with the lessors
thereunder. The Company acknowledges and agrees that the Motor Vehicle
leases will be terminated by Seller and Thermo Electron Corporation
upon expiration of said 30 days. The Seller shall present the Company
with any purchase options under the Motor Vehicle Leases that arise as
a result of said termination.
10. Governing Law; Jurisdiction and Venue .
10.1 Governing Law . This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts, without
regard to conflicts or choice of law provisions.
10.2 Consent to Jurisdiction . Each party to this Agreement, by its
execution hereof, (a) hereby irrevocably submits to the exclusive
jurisdiction of the state courts of The Commonwealth of Massachusetts or
the United States District Court for the District of Massachusetts for the
purpose of any action, claim, cause of action or suit (in contract, tort or
otherwise), inquiry, proceeding or investigation arising out of or based
upon this Agreement or relating to the subject matter hereof, (b) hereby
waives, to the extent not prohibited by applicable law, and agrees not to
assert by way of motion, as a defense or otherwise, in any such action, any
claim that it is not subject to the personal jurisdiction of the
above-named courts, that its property is exempt or immune from attachment
or execution by reason of a lack of personal jurisdiction, that any such
proceeding brought in one of the above-named courts is improper by reason
of a lack of personal jurisdiction or venue, or that this Agreement or the
subject matter hereof may not be enforced in or by such court by reason of
a lack of personal jurisdiction or improper venue, and (c) hereby agrees
not to commence any action, claim, cause of action or suit (in contract,
tort or otherwise), inquiry, proceeding or investigation arising out of or
based upon this Agreement or relating to the subject matter hereof other
than before one of the above-named courts, nor to make any motion or take
any other action seeking or intending to cause the transfer or removal of
any such action, claim, cause of action or suit (in contract, tort or
otherwise), inquiry, proceeding or investigation to any court other than
one of the above-named courts whether on the grounds of inconvenient forum
or otherwise. Each party hereby consents to service of process in any such
proceeding in any manner permitted by Massachusetts law, and agrees that
service of process delivered pursuant to Section 11 hereof is reasonably
calculated to give actual notice.
19
10.3 WAIVER OF JURY TRIAL . TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY WAIVES, AND
COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR
OTHERWISE), ANY RIGHT OT TRIAL BY JURY IN ANY CIVIL ACTION IN ANY FORUM IN
RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN
CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION ARISING
OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY
WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS
CONTEMPLATED HEREBY. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION 10.3 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF EACH SUCH PARTY OT THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
11. Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if delivered personally, by telecopy, or
sent by federal express, registered or certified mail, postage prepaid,
addressed as follows or to such other address of which the parties may have
given notice:
To the Company: ▇▇▇▇▇▇▇▇▇▇ Associates, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, President
Fax: (603) 472 - 7052
With a copy to: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esquire
Maselan ▇▇▇▇▇ & Stanzler, P.C.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (617) ▇▇▇- ▇▇▇▇
20
To the Company: Thermo TerraTech Inc.
c/o Thermo Electron Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Green, P.C.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Unless otherwise specified herein, such notices or other communications shall be
deemed received (a) on the date actually delivered, if delivered personally, by
overnight courier or by telecopy or (b) three (3) business days after being
sent, if sent by registered or certified mail.
12. No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person or entity other than the parties hereto and
their respective successors and permitted assigns.
13. Construction. The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean "including, without limitation." The parties intend
that each representation, warranty, and covenant contained herein shall have
independent significance. If any party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
party has not breached shall not detract from or mitigate the fact that the
party is in breach of the first representation, warranty, or covenant.
14. Specific Performance. Each of the parties acknowledges and agrees that
the other parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the parties agrees that
the other parties shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action instituted in any
court of the United States or any state thereof having jurisdiction over the
parties and the matter, in addition to any other remedy to which they may be
entitled, at law or in equity.
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15. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the Company, on the one hand, and the Seller, on the other
hand, may not assign their respective obligations hereunder without the prior
written consent of the other party. Any assignment in contravention of this
provision shall be void. No assignment shall release the Company or the Seller
from any obligation or liability under this Agreement.
16. Entire Agreement; Amendments; Attachments. The Exhibits and Schedules
hereto are hereby incorporated as integral parts of this Agreement. This
Agreement, all Exhibits and Schedules hereto, and all agreements and instruments
to be delivered by the parties pursuant hereto represent the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and supersede all prior oral and written and all
contemporaneous oral negotiations, commitments and understandings between such
parties. The parties hereto may amend or modify this Agreement by a written
instrument executed by the Company and the Seller.
17. Severability. Any provision of this Agreement which is invalid, illegal
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this Agreement invalid,
illegal or unenforceable in any other jurisdiction.
18. Expenses. Except as otherwise expressly provided herein, the Company,
on the one hand, and the Seller, on the other hand, will pay all other fees and
expenses incurred by them in connection with the transactions contemplated
hereunder.
19. Section Headings. The section headings are for the convenience of the
parties and in no way alter, modify, amend, limit, or restrict the contractual
obligations of the parties.
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of and on the date first above written.
▇▇▇▇▇▇▇▇▇▇ ASSOCIATES, INC.
By: _____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇, President
THERMO TERRATECH INC.
By: _____________________________
▇▇▇▇▇ ▇▇▇▇
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