EXHIBIT 2.2
AGREEMENT AND RELEASE
This Agreement and Release, entered into as of the 15th
day of December, 1997, by and between Fisons plc, an English
company ("Fisons"), on the one hand, and Thermo Instrument
Systems Inc., a Delaware corporation ("Thermo"), and Thermo
Electron Corporation, a Delaware corporation ("Thermo Electron"),
on the other hand (all of whom are sometimes referred to as
"parties").
RECITALS
A. The parties hereto have previously entered into an Amended
and Restated Asset and Stock Purchase Agreement (the
"Agreement"), dated as of March 29, 1996, pursuant to which
Fisons sold a portion of its scientific instruments business to
Thermo.
B. Pursuant to Section 4.1 of the Agreement, which provides for
a possible post-closing adjustment to the purchase price, Fisons
in 1996 delivered to Thermo a draft closing balance sheet with
respect to the business sold. Thereafter, Thermo asserted
certain objections and other claims with respect to that draft
closing balance sheet, which it claimed entitled it to a
reduction in the purchase price, plus interest thereon.
Subsequently, Thermo made certain other claims with respect to
the resale to Fisons pursuant to Section 7.16 of the Agreement of
certain accounts receivable. All such objections and claims are
referred to herein as the "Asserted Claims".
C. The parties desire to resolve the Asserted Claims amicably,
without any admission of liability, on the terms and conditions
set forth herein.
AGREEMENT
NOW, THEREFORE, Fisons, Thermo and Thermo Electron, in
consideration of the foregoing and the mutual promises and
obligations contained herein, and intending to be legally bound
hereby, covenant and agree as follows:
1. In consideration of the terms hereof, the releases
granted hereby and the other covenants herein, Fisons shall pay
to Thermo the sum of TWENTY-FOUR MILLION FOUR HUNDRED FIFTY-SIX
THOUSAND SEVEN HUNDRED EIGHTY-THREE British Pounds Sterling
(BPS24,456,783) (collectively, the "Settlement Funds"), as set
forth below by wire transfer to the following bank and account
number:
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Barclays Bank Plc
London England
Sort Code 20-00-00
For: Thermo Instrument Systems Inc.
Account Number xxxxxxxx
Attention: North American Team
The Settlement Funds are compromised of the following
constituent amounts:
(a) 2,475,000 British Pounds Sterling, in respect of
Claims (as defined below) relating to the matters provided for in
Section 7.16 of the Agreement;
(b) 19,650,000 British Pounds Sterling, in respect of
all other Claims (as defined below) released hereunder;
(c) 2,331,783 British Pounds Sterling, representing
interest on the amount provided for in subparagraph (b) above.
Fisons shall pay the Settlement Funds in full on January 2,
1998. The effectiveness of this Agreement and Release is
conditioned upon Thermo's receipt of the Settlement Funds.
2. 2.1 In consideration of the delivery of the Settlement
Funds as set forth above in paragraph 1, each of Thermo and
Thermo Electron does, for and on behalf of itself as well as all
persons claiming by, through or under it (including without
limitation all past, present and future parents, predecessors,
successors, subsidiaries, affiliates and assigns, their
respective past, present and future directors, officers,
employees, agents, attorneys and insurers, and administrators
thereof) (individually and collectively, "Releasors"), hereby
irrevocably and unconditionally acknowledges complete
satisfaction of, and does hereby remise, release and forever
discharge Fisons, its past, present and future parents,
predecessors, successors, subsidiaries, affiliates and assigns,
their respective past, present and future directors, officers,
shareholders, employees, agents, attorneys and insurers, and
administrators thereof (including without limitation
Rhone-Poulenc Rorer Inc.) (individually and collectively,
"Releasees") of and from, any and all claims, demands, causes of
action, suits, debts, sums of money, accounts, covenants,
contracts, controversies, agreements, promises, damages and
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judgments ("Claims") of any kind or nature whatsoever, in law or
in equity, known or unknown, existing or contingent, suspected or
unsuspected, within this or any jurisdiction, that it ever had or
may have had or may now or hereafter have, arising from or
relating to:
(a) any matter provided for in any one or more of the
following Sections of the Agreement:
(i) Section 3.2(b) insofar as it relates to any
liability for a warranty obligation released under
paragraph 2.1(a)(iii) of this Agreement and
Release or any liability for a product liability
claim released under paragraph 2.1(a)(ii) of this
Agreement and Release (and, for the avoidance of
doubt, the release under this paragraph 2.1(a)(i)
of this Agreement and Release shall not affect any
Claim under such Section 3.2 (b) with respect to
the lawsuit Biacore, AB and Biacore, Inc. v.
Thermo Bioanalysis Corporation, U.S.D.C., D. Del,
No. 97-274);
(ii) Section 3.2(f) insofar as it relates to any
liability for a product liability claim asserted
on or prior to the date hereof with respect to an
occurrence after the Closing (as defined in the
Agreement);
(iii) Section 3.2(j), except for any Claim
under Section 3.2(j) with respect to the lawsuit
The Purdue Frederick Company v. Fisons
Instruments, Inc., and VG Laboratory Systems
Limited, U.S.D.C., S.D.N.Y. No. 97 CV-0898;
(iv) Section 4.1;
(v) Section 5, except for the representations and
warranties set forth therein that are identified
in Section 11.3(c)(i) of the Agreement as
surviving without time limit;
(vi) Section 7.16;
(vii) Section 11.1(a) insofar as it relates to
representations and warranties with respect to
which Claims are released hereunder;
(viii) Section 11.1(b) insofar as it relates to
covenants or agreements with respect to which
Claims are released hereunder;
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(ix) Section 11.1(c) insofar as it relates to
Excluded Liabilities (as defined in the Agreement)
with respect to which Claims are released
hereunder;
(x) Section 11.1(d) insofar as it relates to
Excluded Company Liabilities (as defined in the
Agreement) corresponding to the Excluded
Liabilities with respect to which Claims are
released hereunder; and
(xi) all other Sections or portions thereof of the
Agreement, except for the Sections and matters set
forth below in paragraph 2.2 of this Agreement and
Release; provided, however, that each Claim (other
than an Asserted Claim or any Claim for a matter
that is known to any Releasor as of the date
hereof) arising from or relating to any matter
provided for in any such other Sections of the
Agreement shall be excluded from the release under
this paragraph 2.1(a)(xi) to the extent the Losses
(as defined in the Agreement) incurred or suffered
by Thermo as a result of such Claim exceed ONE
MILLION UNITED STATES DOLLARS (US $1,000,000); and
provided further that in determining whether such
threshold has been exceeded all Claims arising out
of separate occurrences shall be treated as
separate Claims except that Claims arising out of
the same or similar circumstances or the same text
of the Agreement shall be treated as a single
Claim; and/or
(b) the Asserted Claims and/or the subject matter
thereof.
2.2 The release under paragraph 2.1(a)(xi) of this
Agreement and Release shall not extend to any one or more of the
following Sections of the Agreement:
(a) Sections 2.7; 2.8; 2.9; 3.2(a), (c), (d), (e),
(g), (h), (i), (k), (l), (m), and (n); 4.2; 4.3; 7.6;
7.7(a), (b) and (c); 7.8; 7.9; 7.10(b); 7.12; 7.13;
7.14; 7.15; 7.17; 7.19; 7.21; 7.23; 7.24; 11.1(e),( f),
(g) and (h); 11.3; 11.4; and 13;
(b) Sections 3.2(b), (f) and (j) insofar as they are
excluded from the release under paragraphs 2.1(a)(i),
(ii) or (iii) of this Agreement and Release; and
(c) Sections 11.1(a), (b), (c) and (d) insofar as they
relate to Claims that are excluded from the release
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hereunder pursuant to paragraph 2.1(a)(xi), 2.2(a) or
2.2(b) of this Agreement and Release.
3. Each of Thermo and Thermo Electron understands and
acknowledges that it is possible that unknown losses or claims
exist or that the Asserted Claims may have been underestimated in
amount or severity, and the parties explicitly took that into
account in determining to enter into this Agreement and Release,
and nonetheless bargained, with the knowledge of the possibility
of such unknown claims to provide for a full accord, satisfaction
and discharge of all such claims that are within the scope of the
release provided hereunder. Consequently, each of Thermo and
Thermo Electron expressly waives all rights under California
Civil Code Section 1542, or any similar provision law. Section
1542 provides that:
" A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor
at the time of executing the release, which if known by
him must have materially affected his settlement with
the debtor."
4. Each of Thermo and Thermo Electron represents, warrants
and covenants that there are not now pending and that it will not
hereafter under any circumstances commence or prosecute any suit,
action or proceeding or assert any claim against any of the
Releasees with respect to any Claim released hereunder.
5. Each of Thermo and Thermo Electron represents and
warrants that:
(a) it has not heretofore assigned or transferred or
purported to assign or transfer to any person or entity
any Claim (or portion thereof or interest therein)
released hereunder, and it shall indemnify, defend and
hold the Releasees harmless from and against any and
all claims based on or arising out of any such
assignment or transfer, or purported assignment or
transfer, of any such Claim or any portion thereof or
interest therein;
(b) it has not been induced to execute this Agreement
and Release by any warranty, representation, promise,
covenant or agreement made by or on behalf of Releasees
or any other person or entity, other than the payment
of the Settlement Funds as described in paragraph 1
hereof;
(c) it has carefully read and understood the scope and
effect of every provision of the Agreement and Release,
it has consulted with counsel of its choice who has
fully and completely explained to it the terms and
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provisions of this Agreement and Release and it has
executed this Agreement and Release voluntarily and
intending to be legally bound hereby;
(d) it has full power and authority to execute and
deliver this Agreement and Release and to perform its
obligations hereunder in accordance with their terms;
(e) the execution and delivery of this Agreement and
Release, and the performance by it of its obligations
hereunder, have been duly authorized by all necessary
corporate actions on its part;
(f) this Agreement and Release constitutes its legal,
valid and binding obligation, enforceable against it in
accordance with the terms hereof.
6. This Agreement and Release constitutes a full and
complete compromise and settlement of all Claims released
hereunder. In addition, Fisons acknowledges and agrees that this
Agreement and Release constitutes a full and complete compromise
and settlement of (i) the adjustments under Section 4.1 of the
Agreement based on the Draft Closing Balance Sheet and the
Closing Balance Sheet (as those terms are defined in the
Agreement); and (ii) all of Fisons' rights and Thermo's
obligations under Section 7.16 of the Agreement.
7. Each of Thermo and Thermo Electron acknowledges that
this Agreement and Release, the settlement reflected herein and
the payment made pursuant hereto are the result of the compromise
resolution of disputed claims and shall never be offered or
construed as an admission of any liability of any Releasee, or an
acknowledgment of the validity of any Claim released hereunder,
or as evidence of any such matter. Releasees specifically deny
any and all such liability or other responsibility to Releasors
and the validity of any and all such Claims.
8. This Agreement and Release and all of its covenants,
agreements, representations, warranties, terms and conditions
shall be binding upon and shall insure to the benefit of (1) the
successors, heirs and assigns hereafter of each of the parties
hereto, and (2) any persons and/or entities that acquire all or
part of the assets of any of the parties hereto.
9. No waiver or compromise of any default under or breach
of this Agreement and Release or any indulgence granted with
respect to the performance of any obligation hereunder shall
constitute or be deemed to imply a waiver of (1) any subsequent
breach of this Agreement and Release or (2) the strict
performance of any further obligations hereunder.
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10. This Agreement and Release sets forth the entire
agreement between the parties and fully supersedes any and all
prior agreements, representations and understandings between the
parties hereto pertaining to the subject matter hereof. No
change, modification or addition, amendment or supplement to this
Agreement and Release shall be valid unless set forth in writing
and signed and dated by each and all of the parties hereto.
11. This Agreement and Release shall be governed by and
construed in accordance with the laws of the State of New York
(without regard to principles of conflicts of law).
12. This Agreement and Release may be executed in separate
counterparts.
IN WITNESS WHEREOF, the parties have caused this Agreement
and Release to be executed by their duly authorized
representatives as of the date first set forth above.
Fisons plc Thermo Instrument Systems Inc.
By: /s/ Guillaume Prache By: /s/ Earl R. Lewis
Name: Guillaume Prache Name: Earl R. Lewis
Title: Sr. Vice President Title: President
and Chief Financial
Officer
Thermo Electron Corporation
By: /s/ Earl R. Lewis
Name: Earl R. Lewis
Title: Vice President
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RHONE-POULENC RORER
RHONE-POULENC RORER INC.
500 ARCOLA ROAD
P.O. BOX 1200
COLLEGEVILLE, PA 19426-0107
TEL. 610-454-8000
December 15, 1997
Thermo Instrument Systems Inc.
81 Wyman Street
Waltham, MA 02251
Re: Guarantee (the "Guarantee") of Rhone-Poulenc Rorer Inc.
("RPR"), dated March 29, 1996, with respect to Asset
and Stock Purchase Agreement (the "Agreement") dated as
of March 29, 1996 among Thermo Instrument Systems Inc.,
Thermo Electron Corporation and Fisons plc
Gentlemen:
This will confirm that RPR as Guarantor under the
above-referenced Guarantee acknowledges and consents to the
revisions to the Agreement made by the Agreement and Release,
dared as of December 15, 1997, between Fisons plc, Thermo
Instrument Systems Inc. and Thermo Electron Corporation.
Very truly your,
RHONE-POULENC RORER INC.
By: /s/ Richard B. Young
Richard B. Young
Vice President