1
EXHIBIT 1
METRIKA SYSTEMS CORPORATION
2,000,000 SHARES*
COMMON STOCK
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
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New York, New York
__________, 1997
SALOMON BROTHERS INC
XXXXXX BROTHERS INC.
XXXXX XXXXXX INC.
CAZENOVE & CO.
As Representatives of the several Underwriters
c/o SALOMON BROTHERS INC
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Metrika Systems Corporation, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, 2,000,000 shares of Common Stock, $.01 par value ("Common
Stock") of the Company (the "Underwritten Securities"). The Company also
proposes to grant to the Underwriters an option to purchase up to 300,000
additional shares of Common Stock (the "Option Securities"; the Option
Securities, together with the Underwritten Securities, being hereinafter called
the "Securities").
The Company currently is a majority-owned subsidiary of Thermo Instrument
Systems Inc., a Delaware corporation ("Thermo Instrument"), which is, in turn, a
majority-owned subsidiary of Thermo Electron Corporation, a Delaware corporation
("Thermo Electron"). To the extent provided herein and for good and valuable
consideration, each of Thermo Instrument and Thermo Electron has become a party
to this Underwriting Agreement.
1. REPRESENTATIONS AND WARRANTIES. The Company, Thermo Instrument and
Thermo Electron, jointly and severally, represent and warrant to, and agree
with, each Underwriter as set forth below in this Section 1. Certain terms used
in this Section 1 are
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* Plus an option to purchase from Metrika Systems Corporation up to 300,000
additional shares to cover over-allotments.
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defined in paragraph (c) hereof. The following representations, warranties and
agreements shall be deemed to apply to each Subsidiary (as defined in Section
14) of the Company, unless the context does not permit
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (File Number 333- ) on Form S-1,
including a related preliminary prospectus, for the registration under the
Securities Act of 1933, as amended (the "Act"), of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto, including
the related preliminary prospectus, each of which has previously been furnished
to you. The Company will next file with the Commission either (A) prior to
effectiveness of such registration statement, a further amendment to such
registration statement (including the form of final prospectus) or (B) after
effectiveness of such registration statement, a final prospectus in accordance
with Rules 430A and 424(b)(1) or (4). In the case of clause (B), the Company has
included in such registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Prospectus with respect to the Securities and
the offering thereof. As filed, such amendment and form of final prospectus, or
such final prospectus, shall contain all Rule 430A Information, together with
all other such required information, with respect to the Securities and the
offering thereof and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary Prospectus) as
the Company has advised you, prior to the Execution Time, will be included or
made therein. Upon your request, but not without your agreement, the Company
also will file a Rule 462(b) Registration Statement in accordance with Rule
462(b). To the extent applicable, the copies of the Registration Statement and
each amendment thereto (including all exhibits filed therewith), any Preliminary
Prospectus or Prospectus (in each case, as amended or supplemented) furnished to
the Underwriters have been and will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to the
Commission's Electronic Data Gathering, Analysis and Retrieval System, except to
the extent permitted by Regulation S-T.
(b) On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule 424(b)
and on the Closing Date and on any date on which shares sold in respect of the
Underwriters' over-allotment option are purchased, if such date is not the
Closing Date (the Closing Date and each other such date being referred to herein
as a "Settlement Date"), the Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the Act and
the rules thereunder; on the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on each Settlement Date, the Prospectus
(together with any supplement thereto) will not, include any untrue statement of
a material fact or omit to state a material fact necessary in order to
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make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company, Thermo
Instrument and Thermo Electron make no representations or warranties as to the
information contained in or omitted from the Registration Statement or the
Prospectus (or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "the Effective Date" shall mean each date that the
Registration Statement, any post-effective amendment or amendments thereto and
any Rule 462(b) Registration Statement became or become effective. "Execution
Time" shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Preliminary Prospectus" shall mean any
preliminary prospectus referred to in paragraph (a) above and any preliminary
prospectus included in the Registration Statement at the Effective Date that
omits Rule 430A Information. "Prospectus" shall mean the prospectus relating to
the Securities that is first filed pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is required, shall mean the form
of final prospectus relating to the Securities included in the Registration
Statement at the Effective Date. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including exhibits
and financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration statement as so amended
or such Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A. "Rule 424", "Rule 430A" and "Rule 462"
refer to such rules under the Act. "Rule 430A Information" means information
with respect to the Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule
430A. "Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the initial registration statement (file number 333- ).
For purposes of this Agreement, all references to the Registration Statement,
any Preliminary Prospectus, the Prospectus, or any amendment or supplement to
any of the foregoing, shall be deemed to include the respective copies thereof
filed with the Commission pursuant to XXXXX.
(d) The accounting firm(s) whose report(s) appear in the Prospectus
are independent certified public accountants as required by the Act and the
rules thereunder. The financial statements and schedules (including the related
notes) included in the Registration Statement, any Preliminary Prospectus or the
Prospectus present fairly, in all material respects, the financial condition,
results of operations and cash flows of the entities purported to be shown
thereby at the dates and for the periods indicated and have been prepared in
accordance with generally accepted accounting principles.
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(e) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own or lease its
properties and conduct its business as described in the Prospectus, and is duly
qualified to do business and is in good standing in each jurisdiction in which
the character of the business conducted by it or the location of the properties
owned or leased by it makes such qualification necessary except where the
failure to so qualify or be in good standing would not have a material adverse
effect on the Company and its Subsidiaries taken as a whole; and, except as
described in the Prospectus, the Company holds all material licenses,
certificates and permits from governmental authorities necessary for the conduct
of its business as described in the Prospectus.
(f) All of the outstanding shares of Common Stock have been, and the
Securities, upon issuance and delivery and payment therefor in the manner herein
described, will be, duly authorized, validly issued, fully paid and
nonassessable. Other than as described in the Prospectus, there are no
preemptive rights or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any shares of Common Stock pursuant
to the Company's corporate charter, by-laws or other governing documents or any
agreement or other instrument to which the Company is a party or by which it may
be bound. Neither the filing of the Registration Statement nor the offering or
sale of the Securities as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied and other than as
described in the Prospectus, for or relating to the registration of any shares
of Common Stock or other securities of the Company. The capitalization of the
Company as of __________ is as set forth in the Prospectus and the Common Stock
conforms to the description thereof contained in the Prospectus. All of the
outstanding shares of capital stock of each Subsidiary (as defined in Section
14) of the Company have been duly authorized and validly issued, are fully paid
and nonassessable and are owned directly or indirectly by the Company, free and
clear of any claim, lien, encumbrance, security interest, restriction upon
voting or transfer or any other claim of any third party.
(g) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse change in,
or any adverse development which materially affects, the condition (financial or
other), results of operations, business or prospects of the Company on a
consolidated basis from the date as of which information is given in the
Prospectus.
(h) The Company is not, and would not be with the giving of notice or
lapse of time or both, in violation of or in default under, nor will the
execution or delivery hereof or consummation of the transactions contemplated
hereby result in a violation of, or constitute a default under, the corporate
charter, by-laws or other governing documents of the Company, or any material
agreement, indenture or other instrument to which the Company is a party or by
which it is bound, or to which any of its properties is subject, nor will the
performance by the Company of its obligations hereunder violate any existing
law, rule, administrative regulation or decree of any court or any governmental
agency or body having jurisdiction over the Company or any of its properties, or
result in the creation or imposition
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of any lien, charge, claim or encumbrance upon any property or asset of the
Company, which would be material to the Company and its Subsidiaries taken as a
whole. Except for permits and similar authorizations required under the Act and
the securities or "Blue Sky" laws of certain jurisdictions and for such permits
and authorizations as have been obtained, no consent, approval, authorization or
order of any U.S. court, governmental agency or body or any financial
institution is required in connection with the consummation by the Company of
the transactions contemplated by this Agreement.
(i) This Agreement has been duly authorized, executed and delivered by
the Company.
(j) The Company owns, or has valid rights to use, all items of real
and personal property which are material to the business of the Company and its
Subsidiaries taken as a whole, free and clear of all liens, encumbrances and
claims which may materially interfere with the business, properties, financial
condition or results of operations of the Company on a consolidated basis.
(k) Except as described in the Prospectus, there is no litigation or
governmental proceeding to which the Company or Thermo Instrument or Thermo
Electron is a party or to which any property of the Company is subject or which
is pending or, to the knowledge of the Company, Thermo Instrument or Thermo
Electron, contemplated against the Company or Thermo Instrument that is required
to be disclosed in the Prospectus and that is not so disclosed.
(l) The Company is not in violation of any law, ordinance,
governmental rule or regulation or court decree to which it is subject, which
violation could have a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company on a
consolidated basis.
(m) The Company owns or possesses adequate licenses or other rights to
use all intellectual property rights, including patents, trademarks, service
marks, trade names, copyrights or know-how, necessary to conduct its business as
described or referred to in the Prospectus, and, except as disclosed in the
Prospectus, none of Thermo Electron, Thermo Instrument or the Company has
received any notice of infringement of or conflict with (or knows of any such
infringement of or conflict with) rights or claims of others with respect to any
patents, trademarks, service marks, trade names, copyrights or know-how, that if
the subject of an unfavorable decision, ruling or finding, would result in a
material adverse effect upon the Company on a consolidated basis, and, except as
disclosed in the Prospectus, all products or processes referred to in the
Prospectus and relating to the business of the Company now conducted by it do
not infringe upon or conflict with any right or patent, or with any discovery,
invention, product or process which is the subject of any patent application
known to the Company or Thermo Electron, in a manner which would materially and
adversely affect the Company on a consolidated basis.
(n) The Corporate Services Agreement between the Company and Thermo
Electron (the "Services Agreement"), and the other agreements between the
Company and
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Thermo Instrument or Thermo Electron pursuant to which the Company was initially
organized and capitalized (collectively, the "Organization Agreements"), and the
Tax Allocation Agreement between Thermo Electron and the Company (all of the
foregoing agreements being referred to herein as the "Inter-corporate
Agreements") each has been duly and validly authorized, executed and delivered
by the Company and is the valid and binding agreement of the Company enforceable
in accordance with its terms, except as provided by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) (collectively, "applicable
bankruptcy laws"). The execution, delivery and performance of the
Inter-corporate Agreements by the Company, the consummation of the transactions
therein contemplated and compliance with the terms thereof do not and will not
result in a violation of, or constitute a default under, the corporate charter,
by-laws or other governing documents of the Company, or any agreement, indenture
or other instrument to which the Company is a party or by which it is bound, or
to which any of its properties is subject, and do not and will not violate any
existing law, rule, administrative regulation or decree of any court or any
governmental agency or body having jurisdiction over the Company or any of its
properties, or result in the creation or imposition of any lien, charge, claim
or encumbrance upon any property or asset of the Company, which would be
material to the Company and its Subsidiaries taken as a whole. No consent,
approval, authorization or order of any court, governmental agency or body or
financial institution is required in connection with the consummation of the
transactions contemplated by such Inter-corporate Agreements.
(o) Neither the Company nor Thermo Electron nor Thermo Instrument or
any other Subsidiary of Thermo Electron has taken and none of such companies
shall take, directly or indirectly, any action designed to cause or result in,
or which has constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of the shares of Common Stock to
facilitate the sale or resale of the Securities.
(p) The Securities have been approved for listing on the American
Stock Exchange, subject only to official notice of issuance.
1A. REPRESENTATIONS AND WARRANTIES OF THERMO INSTRUMENT AND THERMO
ELECTRON. Thermo Instrument and Thermo Electron each represent and warrant to,
and agree with, each Underwriter that:
(a) Each of Thermo Instrument and Thermo Electron has been duly organized
and is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with full power and authority (corporate and
other) to own or lease its properties and conduct its business, and is duly
qualified to do business and is in good standing in each jurisdiction in which
the character of the business conducted by it or the location of the properties
owned or leased by it makes such qualification necessary, except where the
failure to so qualify or be in good standing would not have a material adverse
effect on Thermo Electron and its Subsidiaries taken as a whole.
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(b) There has not been any material adverse change in, or any adverse
development which materially affects, the condition (financial or other),
results of operations, business or prospects of Thermo Electron and its
Subsidiaries taken as a whole, from the date as of which information is given in
the most recent quarterly or annual report filed by Thermo Electron pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), except any
as may have been disclosed to the public.
(c) Neither Thermo Instrument nor Thermo Electron is, nor with the giving
of notice or lapse of time or both would be, in violation of or in default
under, nor will the execution or delivery hereof or consummation of the
transactions contemplated hereby result in a violation of, or constitute a
default under, the corporate charter, by-laws or other governing documents of
Thermo Instrument or Thermo Electron, or any material agreement, indenture or
other instrument to which Thermo Instrument or Thermo Electron is a party or by
which any of them is bound, or to which any of their properties is subject, nor
will the performance by Thermo Instrument or Thermo Electron of its obligations
hereunder violate any existing law, rule, administrative regulation or decree of
any court or any governmental agency or body having jurisdiction over Thermo
Instrument or Thermo Electron or any of their respective properties, or result
in the creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of Thermo Instrument or Thermo Electron, which would be
material to Thermo Electron and its Subsidiaries taken as a whole. Except for
permits and similar authorizations required under the Securities Act and the
securities or "Blue Sky" laws of certain jurisdictions and for such permits and
authorizations as have been obtained, no consent, approval, authorization or
order of any court, governmental agency or body or financial institution is
required in connection with the consummation by Thermo Instrument and Thermo
Electron of the transactions contemplated by this Agreement.
(d) This Agreement has been duly authorized, executed and delivered by
Thermo Instrument and Thermo Electron.
(e) Thermo Instrument owns, and will own as of each Closing Date (as
defined below), of record and beneficially, the number of shares of Common Stock
of the Company set forth in the Prospectus, free and clear of any liens,
encumbrances, claims or restrictions, except that certain of such shares are
reserved for issuance pursuant to stock option and other benefit plans under
which options to purchase Common Stock of the Company owned by Thermo Instrument
are granted to certain employees, directors or consultants of Thermo Electron
and its Subsidiaries.
(f) The most recent Annual Report on Form 10-K of Thermo Instrument and of
Thermo Electron and any subsequent reports filed pursuant to the Exchange Act
complied as of the date thereof in all material respects with the Exchange Act
and the rules and regulations thereunder.
(g) The transfer by Thermo Instrument to the Company of certain stock
and/or assets, as described in the Prospectus and in the Organization
Agreements, has been completed by all required corporate and other action. Each
of the Inter-corporate
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Agreements to which Thermo Instrument is a party has been duly and validly
authorized, executed and delivered by Thermo Instrument and is the valid and
binding agreement of Thermo Instrument enforceable in accordance with its terms,
except as provided by applicable bankruptcy laws. The execution, delivery and
performance of each of the Inter-corporate Agreements to which Thermo Instrument
is a party by Thermo Instrument, the consummation of the transactions therein
contemplated and compliance with the terms thereof do not and will not result in
a violation of, or constitute a default under, the corporate charter, by-laws or
other governing documents of Thermo Instrument, or any agreement, indenture or
other instrument to which Thermo Instrument is a party or by which it is bound,
or to which any of its properties is subject, and do not and will not violate
any existing law, rule, administrative regulation or decree of any court or any
governmental agency or body having jurisdiction over Thermo Instrument or any of
its properties, or result in the creation or imposition of any lien, charge,
claim or encumbrance upon any property or asset of Thermo Instrument, which
would be material to Thermo Instrument. No consent, approval, authorization or
order of any court, governmental agency or body or financial institution is
required in connection with the consummation by Thermo Instrument of the
transactions contemplated by the Inter-corporate Agreements to which Thermo
Instrument is a party, except such as have been obtained.
(h) The Services Agreement has been duly and validly authorized, executed
and delivered by Thermo Electron and is the valid and binding agreement of
Thermo Electron, enforceable in accordance with its terms.
2. Purchase and Sale.
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(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $______ per share, the amount
of the Underwritten Securities set forth opposite such Underwriter's name in
Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
300,000 shares of the Option Securities at the same purchase price per share as
the Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in part
at any time (but not more than once) on or before the 30th day after the date of
the Prospectus upon written or telegraphic notice by the Representatives to the
Company setting forth the number of shares of the Option Securities as to which
the several Underwriters are exercising the option and the Settlement Date.
Delivery of certificates for the shares of Option Securities by the Company, and
payment therefor to the Company, shall be made as provided in Section 3 hereof.
The number of shares of the Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of shares of the
Option Securities to be purchased by the several Underwriters as
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such Underwriter is purchasing of the Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the second business day prior to
the Closing Date) shall be made at 10:00 AM, Eastern time, on __________, 1997,
or such later date (not later than __________, 1997) as the Representatives
shall designate, which date and time may be postponed by agreement among the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the aggregate purchase price
thereof to or upon the order of the Company by certified or official bank check
or checks drawn on or by a New York Clearing House bank and payable in same day
funds or by wire transfer of New York Clearing House bank same day funds.
Delivery of the Underwritten Securities and the Option Securities shall be made
at such location as the Representatives shall reasonably designate at least one
business day in advance of the Closing Date and payment for such Securities
shall be made at the office of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, Boston,
Massachusetts. Certificates for the Securities shall be registered in such names
and in such denominations as the Representatives may request not less than two
full business days in advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
If the option provided for in Section 2(b) hereof is exercised after the
second business day prior to the Closing Date, the Company will deliver (at the
expense of the Company) to the Representatives, at Seven World Trade Center, New
York, New York, on the date specified by the Representatives (which shall be
within three business days after exercise of said option), certificates for the
Option Securities in such names and denominations as the Representatives shall
have requested against payment of the purchase price thereof to or upon the
order of the Company by certified or official bank check or checks drawn on or
by a New York Clearing House bank and payable in same day funds or by wire
transfer of New York Clearing House bank same day funds. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the Settlement Date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. OFFERING BY UNDERWRITERS. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the
Prospectus.
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5. AGREEMENTS. The Company, Thermo Instrument and Thermo Electron, jointly
and severally, agree with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment thereof, to
become effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement,
supplement to the Prospectus or any Rule 462(b) Registration Statement without
your prior consent. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or filing of
the Prospectus is otherwise required under Rule 424(b), the Company will cause
the Prospectus, properly completed, and any supplement thereto to be filed with
the Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. Upon your request, the Company will cause
the Rule 462(b) Registration Statement, completed in compliance with the Act and
the applicable rules and regulations thereunder, to be filed with the Commission
pursuant to Rule 462(b) and will provide evidence satisfactory to the
Representatives of such filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, shall have become effective, (ii)
when the Prospectus, any supplement thereto or any Rule 462(b) Registration
Statement shall have been filed (if required) with the Commission pursuant to
Rule 424(b), (iii) when, prior to termination of the offering of the Securities,
any amendment to the Registration Statement shall have been filed or become
effective, (iv) of any request by the Commission for any amendment of the
Registration Statement or any Rule 462(b) Registration Statement or supplement
to the Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (vi) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Act or the rules thereunder, the
Company promptly will (i) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an amendment or supplement
which will correct such statement or omission or effect such compliance and (ii)
supply any supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings statement or
statements of the
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Company which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company will furnish
or cause to be furnished to the Representatives copies of all reports on Form SR
required by Rule 463 under the Act. The Company will pay the expenses of
printing or other production of all documents relating to the offering.
(e) The Company will arrange for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may designate,
will maintain such qualifications in effect so long as required for the
distribution of the Securities and will pay the fee of the National Association
of Securities Dealers, Inc., in connection with its review of the offering.
(f) The Company, Thermo Instrument and Thermo Electron shall not, during
the 180-day period following the date of the Prospectus, except with the prior
written consent of Salomon Brothers Inc, offer for sale, sell or otherwise
dispose of, directly or indirectly, or announce the offering of, any shares of
Common Stock (except for the issuance of shares of Common Stock pursuant to
existing stock option, purchase and compensation plans, or upon conversion of
any currently outstanding convertible securities described in the Prospectus,
except for sales of shares of Common Stock by the Company to Thermo Instrument),
or sell or grant options, rights or warrants with respect to any shares of
Common Stock (other than the grant of options pursuant to existing stock option,
purchase and compensation plans), otherwise than in accordance with this
Agreement or as contemplated in the Prospectus. The Company, Thermo Instrument
and Thermo Electron will not permit any employee stock option, director stock
option or other stock option to purchase Common Stock of the Company granted by
it to be exercised, and the Common Stock issued upon exercise of the stock
option to be sold, prior to the expiration of the 180-day period following the
date of this Prospectus, without the prior written consent of Salomon Brothers
Inc.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company, Thermo Instrument and
Thermo Electron contained herein as of the Execution Time, the Closing Date and
any Settlement Date pursuant to Section 3 hereof, to the accuracy of the
statements of the Company, Thermo Instrument and Thermo Electron made in any
certificates pursuant to the provisions hereof, to the performance by the
Company, Thermo Instrument and Thermo Electron of their respective obligations
hereunder and to the following additional conditions:
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(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later time, the
Registration Statement will become effective not later than (i) 6:00 PM Eastern
time on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM Eastern time on such date, or (ii)
12:00 Noon on the business day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM Eastern time
on such date; if filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement, will
be filed in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Company shall have furnished to the Representatives the opinion of
Xxxx X. Xxxxxxxxx, General Counsel of the Company, Thermo Instrument and Thermo
Electron, dated the Closing Date, to the effect that:
(i) Each of the Company and its Subsidiaries has been duly organized
and is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with full corporate power and authority to
own or lease its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business conducted by it or the
location of the properties owned or leased by it makes such qualification
necessary, except where the failure to so qualify or be in good standing would
not have a material adverse effect on the Company and its Subsidiaries taken as
a whole.
(ii) Each of Thermo Electron and its Significant Subsidiaries (as
defined in Section 14) has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own or lease its
properties and conduct its business as described in the Prospectus;
(iii) the Company's authorized capital stock and outstanding capital
stock is as set forth in the Prospectus under the caption "Description of
Capital Stock"; the capital stock of the Company conforms as to legal matters in
all material respects to the description thereof contained in the Prospectus
under the caption "Description of Capital Stock"; the outstanding shares of
Common Stock have been duly and validly authorized and issued and are fully paid
and nonassessable; the Securities have been duly and validly authorized, and,
when issued and delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable; the Securities are duly
authorized for listing, subject to official notice of issuance, on the Nasdaq
National Market; the certificates for the Securities are in valid and sufficient
form; there are no preemptive or other rights to subscribe for or to purchase,
or any restriction upon the voting or transfer of, any of the Securities
pursuant to the Company's corporate charter, by-laws, other governing documents,
or any agreement or other instrument known to such counsel to which the Company
or a Subsidiary thereof is a party or by which the Company or a Subsidiary
thereof may be bound or to which any of their respective properties is subject;
and, to such counsel's knowledge, neither the filing of
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the Registration Statement nor the offering or sale of the Securities as
contemplated by this Agreement gives rise to any rights for or relating to the
registration of any shares of Common Stock except such as have been waived or
satisfied; and all of the outstanding shares of capital stock of each Subsidiary
of the Company have been duly and validly authorized and issued and are fully
paid and nonassessable and are owned directly or indirectly by the Company free
and clear of any claim, lien, encumbrance or security interest known to such
counsel (except for certain obligations of the Company pursuant to stock and
employee benefit plans maintained for the benefit of employees, officers,
directors and consultants of the Company and its Subsidiaries);
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any Subsidiary
required to be disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus under the caption "Business--Legal Proceedings," and
there is no franchise, contract or other document required to be described in
the Registration Statement or Prospectus, or to be filed as an exhibit, which is
not described or filed as required;
(v) the Registration Statement has become effective under the Act; any
required filing of the Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period required by Rule
424(b); to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened and the Registration Statement
and the Prospectus (other than the financial statements and schedules and other
financial, statistical and accounting information contained therein as to which
such counsel need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act and the rules thereunder;
(vi) this Agreement has been duly authorized, executed and delivered
by the Company, Thermo Instrument and Thermo Electron;
(vii) to the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental agency or body is required
for the consummation of the transactions contemplated herein, except (a) such as
have been obtained under the Act, (b) such as may be required under the blue sky
and state securities laws of any jurisdiction applicable to the offering and
sale of the Securities by the Underwriters and such as may be required for the
clearance of the underwriting arrangements relating to such offering and sale
with the NASD (as to which such counsel need express no opinion), and (c) such
other approvals (specified in such opinion) as have been obtained; and
(viii) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter or by-laws of
the Company (or any of its Subsidiaries), Thermo Instrument or Thermo Electron,
or the terms of any indenture or other agreement or instrument known to such
counsel and to which the Company (or any of its Subsidiaries), Thermo Instrument
or
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Thermo Electron, is a party or bound or any judgment, injunction, order or
decree known to such counsel to be applicable to the the Company (or any of its
Subsidiaries), Thermo Instrument or Thermo Electron, of any court, regulatory
body, administrative agency, governmental body or arbitrator having jurisdiction
over the the Company (or any of its Subsidiaries), Thermo Instrument or Thermo
Electron.
(ix) Each of the Inter-corporate Agreements has been duly authorized,
executed and delivered by the Company, Thermo Instrument and Thermo Electron, as
the case may be, and is the valid and binding agreement of each of the parties
thereto enforceable in accordance with its terms except as provided by
applicable bankruptcy laws. The execution, delivery and performance of each of
the Inter-corporate Agreements by each of the parties thereto, the consummation
of the transactions therein contemplated and compliance with the terms thereof
do not and will not result in a violation of, or constitute a default under the
corporate charter, by-laws or other governing documents of the Company (or any
of its Subsidiaries), Thermo Instrument or Thermo Electron, or any material
agreement, indenture or other instrument known to such counsel to which the
Company (or any of its Subsidiaries), Thermo Instrument or Thermo Electron is a
party or by which any of them is bound, or to which any of their properties is
subject and do not and will not violate any existing law, rule, administrative
regulation or decree of any court or any governmental agency or body having
jurisdiction over the Company, Thermo Instrument or Thermo Electron or any of
their properties, or, to such counsel's knowledge, result in the creation or
imposition of any lien, charge, claim or encumbrance upon any property or asset
of the Company, Thermo Instrument or Thermo Electron, which would be material to
the Company or to Thermo Electron and their respective Subsidiaries taken as a
whole. Except for permits and similar authorizations required under the
Securities Act and the securities or "Blue Sky" laws of certain jurisdictions
and for such permits and authorizations as have been obtained, no consent,
approval, authorization or order of any court, governmental agency or body or,
to the knowledge of such counsel, financial institution is required in
connection with the consummation of the transactions contemplated by the
Inter-corporate Agreements.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent accountants of the Company, representatives
of the Underwriters and representatives of counsel for the Underwriters, at
which the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel need not pass upon, and need
not assume any responsibility for, the accuracy, completeness or fairness of any
statement contained in the Registration Statement or the Prospectus (except for
those statements referred to in the opinions expressed in the first two clauses
of subsection (ii) above) and has made no independent check or verification
thereof, such counsel shall state that on the basis of the foregoing, no facts
have come to such counsel's attention that has led such counsel to believe that
the Registration Statement, as of the date thereof, included any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as of its date or the date of such opinion, included or
includes any untrue statement of a material fact or omitted or omits to
15
-15-
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that such
counsel need express no opinion or belief with respect to the financial
statements, financial statement schedules and other financial, accounting and
statistical data included therein.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
Commonwealth of Massachusetts, the United States or the General Corporation Law
of the State of Delaware, to the extent such counsel deems proper and as
specified in such opinion, upon the opinion of other counsel of good standing
whom such counsel believes to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company and public
officials. References to the Prospectus in this paragraph (b) include any
supplements thereto.
(c) The Representatives shall have received from Xxxxx, Xxxxxxx &
Xxxxxxxxx, LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company, dated the applicable
Settlement Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any supplements
to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the date of the certificate
with the same effect as if made on the date of the certificate, and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
applicable Settlement Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Prospectus (exclusive of any supplement thereto), there has been no
material adverse change in the condition (financial or other), earnings,
business or properties of the Company on a consolidated basis, whether or
not arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
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(e) Thermo Instrument shall have furnished to the Representatives a
certificate of Thermo Instrument, signed by its President or a Vice President
and by its Treasurer or Secretary, dated the applicable Settlement Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplements to the Prospectus and
this Agreement and that:
(i) the representations and warranties of Thermo Instrument in this
Agreement are true and correct on and as of the date of the certificate
with the same effect as if made on the date of the certificate, and Thermo
Instrument has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
applicable Settlement Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to Thermo Instrument's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Prospectus (exclusive of any supplement thereto), there has been no
material adverse change in the condition (financial or other), earnings,
business or properties of the Company on a consolidated basis, whether or
not arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(f) Thermo Electron shall have furnished to the Representatives a
certificate of Thermo Electron, signed by its President or a Vice President and
by its Treasurer or Secretary, dated the applicable Settlement Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplements to the Prospectus and
this Agreement and that:
(i) the representations and warranties of Thermo Electron in this
Agreement are true and correct on and as of the date of the certificate
with the same effect as if made on the date of the certificate, and Thermo
Electron has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
applicable Settlement Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to Thermo Instrument's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Prospectus (exclusive of any supplement thereto), there has been no
material adverse change in the condition (financial or other), earnings,
business or properties of the Company on a consolidated basis, whether or
not arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
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(g) On the date of this Agreement and on each Settlement Date you shall
have received a letter from each accounting firm whose report appears in the
Prospectus, dated the date of this Underwriting Agreement or such Settlement
Date, as the case may be, and addressed to you, confirming that they are
independent certified public accountants within the meaning of the Act and the
rules thereunder, and stating, as of the date of such letter (or, with respect
to matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a date
not more than five days prior to the date of each such letter), the conclusions
and findings of each such firm with respect to the financial information and
other matters covered by its letter delivered to you concurrently with the
execution of this Agreement, and with respect to each letter delivered on a
Settlement Date confirming the conclusions and findings set forth in such prior
letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto), there shall
not have been (i) any change or decrease specified in the letter or letters
referred to in paragraph (g) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto).
(i) Prior to the applicable Settlement Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the applicable Settlement Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, , counsel for the
Underwriters, at 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, on the applicable
Settlement Date.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the
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Company, Thermo Instrument or Thermo Electron to perform any agreement herein or
comply with any provision hereof other than by reason of a default by any of the
Underwriters, the Company (or Thermo Instrument or Thermo Electron) will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company, Thermo Instrument and
Thermo Electron, jointly and severally, agree to indemnify and hold harmless
each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Securities Exchange Act of 1934 (the "Exchange Act")
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement made by the Company, Thermo Instrument or Thermo Electron in
Section 1 hereof or by Thermo Instrument or Thermo Electron in Section 1A
hereof, (ii) any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities
as originally filed or in any amendment thereof, or in any Preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (iii) any act or failure to act or any
alleged act or failure to act by any Underwriter in connection with, or relating
in any manner to, the Securities or the offering contemplated hereby, and which
is included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that the Company, Thermo Instrument and Thermo Electron shall not be
liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly or indirectly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through
its gross negligence or willful misconduct); and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Company,
Thermo Instrument and Thermo Electron will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein and (ii) with respect to
any untrue statement or omission of a material fact made in any Preliminary
Prospectus, the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any Underwriter (or any of the directors, officers,
employees and agents of such Underwriter or any controlling person of such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the
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circumstances where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (w) the Company had
previously furnished copies of the Prospectus to the Underwriters, (x) delivery
of the Prospectus was required by the Act to be made to such person, (y) the
untrue statement or omission of a material fact contained in the Preliminary
Prospectus was corrected in the Prospectus and (z) there was not sent or given
to such person, at or prior to the written confirmation of the sale of such
Securities to such person, a copy of the Prospectus. This indemnity agreement
will be in addition to any liability which the Company, Thermo Instrument and
Thermo Electron may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, Thermo Instrument and Thermo Electron, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company, Thermo
Instrument and Thermo Electron to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Company by or
on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company, Thermo Instrument and Thermo Electron
acknowledge that the statements set forth in the last paragraph of the cover
page and under the heading "Underwriting" in any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party
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and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, Thermo Instrument, Thermo
Electron and the Underwriters agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which the Company and one or more of the Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company, Thermo Instrument and Thermo Electron on the one hand,
and by the Underwriters on the other, from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company, Thermo Instrument and Thermo Electron,
on the one hand, and the Underwriters on the other, shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, Thermo Instrument and Thermo Electron on the
one hand, and of the Underwriters on the other, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company, Thermo
Instrument and Thermo Electron shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses), and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Prospectus.
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the Company, Thermo
Instrument or Thermo Electron on the one hand, or the Underwriters on the other.
The Company, Thermo Instrument and Thermo Electron and the Underwriters agree
that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8,
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each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company, as well as Thermo Instrument and
Thermo Electron, shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this paragraph
(d).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's Common Stock shall have been suspended by the Commission or the
American Stock Exchange or trading in securities generally on the New York Stock
Exchange or the American Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on either the New York Stock Exchange
or the American Stock Exchange, (ii) a banking moratorium shall have been
declared either by Federal, New York State or Massachusetts authorities or (iii)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it, in the judgment
of the Representatives, impracticable or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Prospectus
(exclusive of any supplement thereto).
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11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers, or of Thermo Instrument or Thermo Electron, and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed and confirmed to them, care of Salomon Brothers Inc, at Seven Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, attention: Legal Department; or, if
sent to the Company, will be mailed, delivered or telefaxed and confirmed to it
at 0000 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, attention:
President, with a copy to Xxxx X. Xxxxxxxxx, Esq, c/o Thermo Electron
Corporation, 00 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000-0000.
13. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14. DEFINITIONS. For purposes of this Agreement, (a) "Business Day" means
any day on which the American Stock Exchange is open for trading and (b)
"Subsidiary" has the meaning set forth in Rule 405 under the Act.
15. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[Remainder of page intentionally left blank]
23
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
METRIKA SYSTEMS CORPORATION
By:
-----------------------------------
Name:
Title:
THERMO INSTRUMENT SYSTEMS INC.
By:
-----------------------------------
Name:
Title:
THERMO ELECTRON CORPORATION
By:
-----------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON BROTHERS INC
XXXXXX BROTHERS INC.
XXXXX XXXXXX INC.
CAZENOVE & CO.
By: SALOMON BROTHERS INC
By:
-----------------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
24
SCHEDULE I
Number of Shares of
Underwritten Securities
Underwriters To Be Purchased
------------ -----------------------
Salomon Brothers Inc. ............................
Xxxxxx Brothers Inc. .............................
Xxxxx Xxxxxx Inc. ................................
Cazenove & Co. ...................................
TOTAL............................................. 2,000,000
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