DATED November 4, 1996
----------------------
(1) SID INSTRUMENTS INC.
(2) ATI ACQUISITION CORP.
(3) THERMO INSTRUMENT SYSTEMS INC.
__________________________________________
AGREEMENT
for the sale and purchase of the whole
of the issued share capital of
Thermo Elemental Limited
____________________________________________
WARNER CRANSTON
Pickfords Wharf
Clink Street
London SE1 9DG
Tel: 0171 403 2900
Fax: 0171 403 4221
Ref: SXC/TE/1686-40-7
PAGE
THIS AGREEMENT is made the 4th day of November
1996
BETWEEN:
(1) SID INSTRUMENTS INC. (the "Vendor") a Delaware corporation
whose principal office is at 81 Wyman Street, Waltham, MA
02254, USA;
(2) ATI ACQUISITION CORP. (the "Purchaser") a Delaware
corporation whose principal office is at 81 Wyman Street,
Waltham, MA 02254, USA; and
(3) THERMO INSTRUMENT SYSTEMS INC. ("Thermo") a Delaware
corporation whose principal office is at 81 Wyman Street,
Waltham, MA 02254, USA.
WHEREAS:
(A) Thermo Elemental Limited ("the Company") is a private
company incorporated with limited liability in England
further particulars of which are set out in Schedule 2.
(B) The Vendor has agreed to sell and the Purchaser has agreed
to buy the Shares (as defined) on the terms and subject to
the conditions contained in this Agreement.
AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement and the Schedules to it the following
expressions shall, unless the context otherwise requires,
have the following meanings:
"the Effective Date" 4 November 1996;
"the Shares" the shares in the capital of
the Company set out in Column
(2) of Schedule 1;
1.2 The headings in this Agreement are for ease of reference
only and shall not be taken into account in construing this
Agreement.
1.3 References to Clauses and Schedules are to clauses and
schedules of this Agreement.
2. SALE AND PURCHASE
PAGE
2.1 The Vendor agrees to sell with full title guarantee, the
Shares and the Purchaser agrees to purchase the Shares with
effect on and from the Effective Date free from any liens,
claims, charges, encumbrances and equities and together with
all rights of any nature whatsoever now or after the date of
this Agreement attaching or accruing to them.
2.2 The aggregate consideration for the purchase of the Shares
shall be the sum set out in Column (3) of Schedule 1 receipt
of which the Vendor hereby acknowledges. The Purchaser and
Vendor acknowledge and agree that such Consideration
represents the sum of (i) the net tangible assets of the
Company assumed to be $8,418,000) as of the date of Thermo's
acquisition of the Shares as part of the acquisition on
March 29, 1996 by Thermo and its subsidiaries of certain
businesses of Fisons plc (the "Fisons Businesses") pursuant
to the Amended and Restated Asset and Stock Purchase
Agreement dated as of March 29, 1996 among Thermo, Thermo
Electron Corporation and Fisons plc (the "Restated
Agreement"), plus (ii) a percentage of the total goodwill
associated with Thermo's acquisition of the Fisons
Businesses equal to the sales of the Company for the 1994
and 1995 fiscal years relative to the total sales of the
Fisons Businesses for such years (the "Company Percentage"),
plus (iii) the Company Percentage of the total costs
incurred by Thermo in acquiring the Fisons Businesses and in
restructuring the sales and service organization of the
Fisons Businesses (the "Restructuring Costs"). The parties
acknowledge that the purchase price paid by Thermo for the
Fisons Businesses is subject to a post-closing adjustment
based on the difference between the value of the net
tangible assets of the Fisons Businesses as shown on the
closing balance sheet dated as of March 29, 1996 (the
"Closing Balance Sheet") and the target net tangible asset
value provided for in the Restated Agreement. In the event
of any such adjustment, the Consideration shall be
recalculated in accordance with the second sentence of this
paragraph to account for (A) any adjustment in the net
tangible assets (other than cash) of the Company as shown on
the Closing Balance Sheet from $8,418,000 and (B) any
adjustment in the total goodwill associated with Thermo's
acquisition of the Fisons Businesses. In addition, the
Consideration shall be subject to recalculation in
accordance with the second sentence of this paragraph in the
event that the Restructuring Costs incurred are less than
$1,378,000. If the recalculation made pursuant to this
paragraph results in an increase in the Consideration, the
Purchaser shall pay the amount of such increase to the
Vendor, and if any such recalculation results in a decrease
in the Consideration, the Vendor shall pay the amount of
such decrease to the Purchaser. Any payment made pursuant
to the preceding sentence shall be made within ten days
after the Closing Balance Sheet has become final (in the
case of any adjustment related to the Closing Balance Sheet)
PAGE
and no later than March 29, 1997 (in the case of an
adjustment related to the Restructuring Costs) and shall
also be accompanied by interest from the date hereof
calculated as provided in Section 4.1 of the Restated
Agreement.
3. FURTHER ASSURANCE
The Vendor shall on or at any time after the date of this
Agreement execute and do all such deeds, documents, acts and
things as the Purchaser shall reasonably require to give
effect to this Agreement.
4. WARRANTIES
4.1 The Vendor represents, warrants and undertakes to and with
the Purchaser in the terms contained in Schedule 3.
4.2 The representations, warranties and undertakings contained
in Schedule 3 shall continue in full force and effect after
the date of this Agreement.
5. COMPLETION
Completion of the sale and purchase of the Shares shall take
place on the date of this Agreement at such time and place
as the parties shall agree when:
(a) the Vendor shall hand to the Purchaser duly executed
transfers in favor of the Purchaser and the share
certificates in respect of the Shares;
(b) the Vendor shall, if required, hand to the Purchaser
the certificate of incorporation, statutory books and
common seal of the Company;
(c) the Purchaser shall pay the consideration in accordance
with Clause 2.2.
6. INDEMNITY
6.1 The Vendor agrees to indemnify and hold harmless the
Purchaser 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 the Purchaser as a result of
(i) the inaccuracy of any representation or warranty
contained in Schedule 3 hereof; (ii) the breach by the
Vendor of any provision hereof; or (iii) any third party
claim arising due to the act of omission of the Vendor or
the Company from March 29, 1996 and prior to the date
hereof.
PAGE
6.2 The Purchaser agrees to indemnify and hold harmless the
Vendor 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 the Vendor as a result of the breach by
the Purchaser of any provision hereof.
6.3 Whenever any claim shall arise or indemnification under this
Agreement, the party seeking indemnification (the
"Indemnified Party"), shall promptly notify the other party
(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 proceedings have been
commenced against the Indemnified Party and the Indemnifying
Party shall not have taken control of such proceedings after
notification thereof as provided in Clause 6.4 of this
Agreement.
6.4 In connection with any claim giving rise to indemnity
hereunder resulting from or arising out of a claim or legal
proceedings by a person who is not a party to this
Agreement, the Indemnifying Party at its sole cost and
expense may, on notice to the Indemnified party, assume the
defense of any such claim or legal proceedings 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 Solicitors of its own choice and 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 Clause 8.1 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 Solicitors of
its own choice and at its own expense.
PAGE
7. GENERAL
7.1 The provisions of this Agreement shall enure to the benefit
of the successors and assigns of the Vendor and the
Purchaser.
8. NOTICES
8.1 A notice or other communication under or in connection with
this Agreement shall be in writing and shall be delivered
personally or sent by first class pre-paid recorded delivery
post or by fax to the party due to receive the notice or
communication at its address set out in this Agreement or
such other address as either party may specify by notice in
writing to the other.
8.2 In the absence of evidence of earlier receipt, a notice or
communication is deemed given:
8.2.1 if delivered personally, when left at the address
referred to in the introduction hereto;
8.2.2 if sent by post, the second business day after its
posting;
8.2.3 if sent by fax, on completion of its transmission.
9. GUARANTEE
Thermo hereby unconditionally guarantees the obligations of
the Vendor arising under this Agreement.
PAGE
10. GOVERNING LAW
This Agreement shall be governed by and construed in all
respects in accordance with English Law and the parties
agree to submit to the exclusive jurisdiction of the English
Courts as regards any claim or matter arising in relation to
this Agreement.
PAGE
SCHEDULE 1
Particulars of Shares and Consideration
(1) (2) (3)
Name of the Company Particulars of Shares Consideration
------------------- --------------------- -------------
Thermo Elemental 2 Ordinary Shares $18,897,000
Limited of 1 British Pounds
Sterling each
PAGE
SCHEDULE 2
Particulars of the Company
Date of Incorporation: 31/01/96
Registered Office: Pickfords Wharf
Clink Street
London SE1 9DG
Number of registration: 3153084
Authorised Share Capital: 1,000
Issued Share Capital: 2
PAGE
SCHEDULE 3
1. The Vendor has full power and authority to enter into and
perform its obligations under this Agreement and the signing
of this Agreement does not violate any provision of the
Vendor's Certificate of Incorporation.
2. The Vendor is a company duly incorporated under the laws of
the State of Delaware, USA.
3. The execution of this Agreement, nor the consummation of the
transaction herein contemplated, nor the fulfillment of or
compliance with the terms and provisions hereof will breach
any current provisions of English law nor 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 Vendor is a party or by
which it is bound.
PAGE
SID INSTRUMENTS INC.
By: Earl R. Lewis
-------------------
Earl R. Lewis
President
ATI ACQUISITION CORP.
By: Robert J. Rosenthal
------------------------
Robert J. Rosenthal
Vice President
THERMO INSTRUMENT SYSTEMS INC.
By: Earl R. Lewis
-----------------
Earl R. Lewis
Executive Vice President