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Exhibit 2
SHARE PURCHASE AGREEMENT
This AGREEMENT is dated as of January 29, 1998 by and among (i) Radley
Services Ltd. ("Radley") and Peek Corporation ("PC"), on the one hand, (ii) ONIX
Systems Inc., on the other hand ("Buyer"), and (iii) Thermo Power Corporation, a
Massachusetts corporation ("Thermo"). Thermo, Radley and PC are sometimes
referred to herein collectively as the Sellers.
WHEREAS, Sellers desire to sell all of the issued and outstanding
shares of each of (i) Peek Measurement Ltd., a company organized under the laws
of England ("PML"), (ii) ▇▇▇▇▇▇ Instruments Inc., a company organized under the
laws of the State of Delaware ("▇▇▇▇▇▇") and (iii) Peek Measurement Inc., a
company organized under the laws of the State of Texas ("PMI") to Buyer, and
Buyer desires to purchase such shares from the Sellers;
NOW, THEREFORE, in consideration of the premises and mutual promises
and agreements set forth herein, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF SHARES.
(a) PC hereby sells, assigns, transfers, conveys, and delivers
to Buyer 100% of the issued and outstanding shares of capital stock of each of
▇▇▇▇▇▇ (the "▇▇▇▇▇▇ Shares") and PMI (the "PMI Shares") and (ii) Radley hereby
sells, assigns, transfers, conveys, and delivers to Buyer 100% of the issued and
outstanding share capital of PML (the "PML Shares," collectively with the ▇▇▇▇▇▇
Shares and PMI Shares, the "Shares"). In consideration for the Shares, Buyer
shall pay to Sellers an aggregate of $19,116,825 in cash (the "Purchase Price")
plus interest on such amount for the period beginning November 6, 1997 and
ending on the date of payment of the Purchase Price, at a rate equal to the
90-day Commercial Paper Composite Rate for 90-day maturities as reported by
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Markets, as an average of the last five business days of
the Buyer's latest fiscal quarter, plus 25 basis points, reset each quarter. The
parties acknowledge and agree that the Purchase Price represents the sum of (i)
the aggregate net tangible assets of PML, ▇▇▇▇▇▇ and PMI (collectively, the
"Peek Measurement Business") (assumed to be $5,559,000) as of the date of
Thermo's acquisition of the Peek Measurement Business as part of the acquisition
on November 6, 1997, by Thermo of Peek plc (the "Peek plc Business"), plus (ii)
a percentage of the total goodwill associated with Thermo's acquisition of the
Peek plc Business equal to the total revenues of the Peek Measurement Business
for the 1997 fiscal year relative to the total revenues of the Peek plc Business
for such period, plus (iii) $1,038,825, representing the estimated tax liability
of Thermo relating to the transfer of the Peek Measurement Business to Buyer.
2. FURTHER ASSURANCES. At the request of Buyer at any time on or
after the date hereof, Sellers will execute and deliver such further
instruments of transfer and conveyance and take such other action as Buyer
reasonably may request effectively to assign and transfer to Buyer any of the
Shares.
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3. SELLERS' REPRESENTATIONS AND WARRANTIES. Each Seller represents
and warrants that:
(a) ORGANIZATION AND EXISTENCE. Such Seller is a company
organized and existing under the laws of its respective jurisdiction of
organization.
(b) APPROVAL OF TRANSACTIONS. Each Seller has obtained all
necessary corporate authorizations and approvals, and has taken all actions
required for the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby.
(c) NO CONFLICT. Neither the execution nor delivery of this
Agreement, nor the consummation of the transactions herein contemplated, nor the
fulfillment of or compliance with the terms and provisions hereof will (1)
conflict with the charter documents or by-laws of such Seller, (2) violate any
current provisions of law, administrative regulation, or court decree applicable
to such Seller or (3) conflict with or result in a breach of any of the terms,
conditions or provisions of or constitute default under any material agreement
or instrument to which such Seller, or any Peek Measurement Business entity, is
a party or by which each is bound.
(d) OWNERSHIP OF ASSETS AND SHARES; AUTHORITY TO TRANSFER. The
Shares are not encumbered and are freely transferable by the respective Seller.
PC holds good and marketable title to the ▇▇▇▇▇▇ Shares and the PMI Shares and
no third party is entitled to claim any right thereto or make any claim thereon.
Radley holds good and marketable title to the PML Shares and no third party is
entitled to claim any right thereto or make any claim thereon. The transfer of
the Shares to Buyer pursuant to this Agreement will vest in Buyer title to the
Shares, free and clear of all liens, claims, equities, options, calls, voting
trusts, agreements, commitments and encumbrances whatsoever.
4. BUYER'S REPRESENTATIONS AND WARRANTIES.
(a) ORGANIZATION AND EXISTENCE. The Buyer is a company organized
and existing under the laws of its jurisdiction of organization.
(b) APPROVAL OF TRANSACTIONS. The Buyer has obtained all
necessary corporate authorizations and approvals, and has taken all actions
required for the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby.
(c) NO CONFLICT. Neither the execution nor delivery of this
Agreement, nor the consummation of the transactions herein contemplated, nor the
fulfillment of or compliance with the terms and provisions hereof will (1)
conflict with the charter documents or by-laws of the Buyer, (2) violate any
current provisions of law, administrative regulation, or court decree applicable
to the Buyer or (3) conflict with or result in a breach of any of the terms,
conditions or provisions of or constitute default under any material agreement
or instrument to which the Buyer is a party or by which it is bound.
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5. INDEMNIFICATION.
(a) Sellers jointly and severally agree to indemnify and hold
harmless Buyer from any and all damages, losses, liabilities, 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) incurred by Buyer as a result of (i) the inaccuracy of any
representation or warranty contained in Section 3 hereof or (ii) the breach by
Sellers of any provision hereof.
(b) Buyer agrees to indemnify and hold harmless Sellers from any
and all damages, losses, liabilities, 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)
incurred by Sellers as a result of (i) the inaccuracy of any representation or
warranty contained in Section 4 hereof or (ii) the breach by Buyer of any
provision hereof.
(c) Whenever any claim shall arise for indemnification
hereunder, the party seeking indemnification (the "Indemnified Party") shall
promptly notify the other party or parties from whom indemnification is sought
(as the case may be, the "Indemnifying Party") of the claim and, when known, the
facts constituting the basis for such claim. 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, the notice to the Indemnifying Party shall
specify, if known, the amount or an estimate of the amount of the liability
arising therefrom. The Indemnified Party shall not settle or compromise any
claim by a third party for which the Indemnified Party is entitled to
indemnification hereunder without the prior consent of the Indemnifying Party,
unless suit shall have been instituted against the Indemnified Party and the
Indemnifying Party shall not have taken control of such suit after notification
thereof as provided in Section 5(d) of this Agreement.
(d) In connection with any claim giving rise to indemnity
hereunder resulting from or arising out of any claim or legal proceeding by a
person who is not a party to this Agreement, the Indemnifying Party at its sole
cost and expense may, upon notice to the Indemnified Party, assume the defense
of any such claim or legal proceeding if it acknowledges to the Indemnified
Party its obligations to indemnify the Indemnified Party with respect to all
elements of such claim. The Indemnified Party shall be entitled to participate
in (but not control) the defense of any such action, with its counsel and at its
own expense. If the Indemnifying Party does not assume the defense of any such
claim or litigation resulting therefrom within 30 days after the date the
Indemnifying Party is notified of such claim pursuant to Paragraph 5(c) hereof,
(i) the Indemnified Party may defend against such claim or litigation, after
giving notice of the same to the Indemnifying Party, on such terms as are
appropriate in the Indemnified Party's reasonable judgment, and (ii) 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.
6. EFFECTIVE DATE. The transfer of the Shares shall be deemed to be
effective as of November 6, 1997.
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7. CAPTIONS. The captions and headings to the various sections,
paragraphs and exhibits of this Agreement are for convenience of reference only
and shall not affect or control the meaning or interpretation of any of the
provisions of this Agreement.
8. INTEGRATION. This Agreement contains the entire understanding of
the parties hereto with respect to the subject matter contained herein.
9. NOTICES AND COMMUNICATIONS. Any notice or other communication
shall be in writing and shall be personally delivered, or sent by overnight or
second day courier or by first class mail, return receipt requested, to the
party to whom such notice or other communication is to be given or made at such
party's address set forth below, or to such other address as such party shall
designate by written notice to the other party as follows:
If to Sellers or Thermo Power Corporation:
Thermo Power Corporation
c/o Thermo Electron Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: General Counsel
If to Buyer:
ONIX Systems Inc.
c/o Thermo Electron Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: General Counsel
provided that any notice of change of address, and any notice or other
communication given otherwise than as specified above shall be effective only
upon receipt; and further that any presumption of receipt by the addressee shall
be inoperable during the period of any interruption in Postal Service.
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made by Sellers or Buyer in this Agreement shall survive the
execution and delivery of this Agreement.
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11. GOVERNING LAW; ASSIGNMENT. This Agreement is to be construed,
interpreted, applied and governed in all respects in accordance with the laws of
the Commonwealth of Massachusetts, without regard to its conflict of laws
provisions, is to take effect as a sealed instrument, is binding upon and inures
to the benefit of the parties hereto and their respective successors and assigns
and may be canceled, modified or amended only by a written instrument executed
by Thermo, Sellers and Buyer. No party hereto may assign its rights hereunder
without prior written consent of the other party.
12. GUARANTY. Thermo hereby unconditionally guarantees all of the
obligations of the other Sellers under this Agreement.
13. COUNTERPARTS. This Agreement may be executed in counterparts, all
of which together shall for all purposes constitute one Agreement, binding on
the parties hereto notwithstanding that such parties have not signed the same
counterpart.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
SELLERS:
RADLEY SERVICES LTD. PEEK CORPORATION
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Authorized Signatory Title: Chairman
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BUYER: THERMO:
ONIX SYSTEMS INC. THERMO POWER CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: President & CEO Title: President & CEO
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