ASSET AND SHARE PURCHASE AGREEMENT

 

                                                                Exhibit 10.18

                       ASSET AND SHARE PURCHASE AGREEMENT

     This AGREEMENT is dated as of July 22, 1996 by and among (i) SID
Instruments Inc. ("SID") and HB Instruments Inc. ("HB"), on the one hand, (ii)
Thermo BioAnalysis Corporation, on the other hand (the "Buyer"), and (iii)
Thermo Instrument Systems Inc., a Delaware corporation ("Thermo"). SID and HB
are sometimes referred to herein together as the Sellers.

     WHEREAS, Sellers desire to sell all of Sellers' property and assets, real,
personal and mixed, tangible and intangible, primarily used in or primarily
related to Sellers' Affinity Sensors business (the "Affinity Division"),
including without limitation all of the issued and outstanding shares of Thermo
Fast UK Limited, a company organized under the laws of England ("Thermo Fast"),
subject to certain liabilities, to Buyer, and Buyer desires to purchase such
assets, and to assume such liabilities;

     NOW, THEREFORE, in consideration of the premises and mutual promises and
agreements set forth herein, the parties hereto hereby agree as follows:

     1. PURCHASE AND SALE OF ASSETS AND SHARES.

          (a) HB hereby sells, assigns, transfers, conveys, and delivers to
Buyer all of HB's property, assets and rights, real, personal and mixed,
tangible and intangible, primarily used in or primarily related to the business
of the Affinity Division (collectively, the "Assets"), and (ii) SID hereby
sells, assigns, transfers, conveys, and delivers to Buyer 100% of the issued and
outstanding share capital (the "Shares") of Thermo Fast. In consideration for
the Assets and the Shares, Buyer shall pay to Sellers an aggregate of $3,500,000
in cash (the "Purchase Price"). The parties acknowledge and agree that such
Purchase Price represents the sum of (i) the net tangible assets of the Affinity
Division (assumed to be $1,053,000) as of the date of Sellers' acquisition of
the business of the Affinity Division, 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 Division for the 1994 and 1995 fiscal years relative
to the total sales of the Fisons Businesses for such years. 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 Purchase Price shall be recalculated in
accordance with the third sentence of this paragraph to account for (A) any
adjustment in the net tangible assets of the Affinity Division as shown on the
Closing Balance Sheet from $1,053,000, and (B) any adjustment in the total
goodwill associated with Thermo's acquisition of the Fisons Businesses. If any
such recalculation results in an increase in the Purchase Price, Buyer shall pay
the amount of such increase to Sellers, 

and if any such recalculation results in a decrease in the Purchase Price,
Sellers shall pay the amount of such decrease to Buyer. Any payment made
pursuant to the preceding sentence shall be made within ten days after the
Closing Balance Sheet has become final.

          (b) The Assets include (but are not limited to), the following,
insofar as they are primarily used in or primarily related to the business of
the Affinity Division:

          (i)   all trade and other accounts receivable and notes receivable;

          (ii)  all inventories of raw materials, work in process, finished
                goods, supplies, packaging materials, spare parts and similar
                items;

          (iii) all machinery, equipment, tools and tooling, furniture,
                fixtures, leasehold improvements and motor vehicles;

          (iv)  all real property, leaseholds and subleaseholds in real 
                property, and easements, rights-of-way and other appurtenants 
                thereto;

          (v)   (A) all patents, patent applications, patent disclosures and all
                related continuation, continuation-in-part, divisional, reissue,
                re-examination, utility, model, certificate of invention and
                design patents, patent application, registrations and
                applications for registrations;

                (B) all trademarks, service marks, trade dress, logos, trade
                names and corporate names and registrations and applications for
                registration thereof;

                (C) all copyrights and registrations and applications for
                registration thereof, mask works and registrations and
                applications for registration thereof, computer software, source
                code, data and documentation, trade secrets and confidential
                business information, whether patentable or nonpatentable and
                whether or not reduced to practice, know-how, manufacturing and
                product processes and techniques, research and development
                information, copyrightable works, financial, marketing and
                business data, pricing and cost information, business and
                marketing plans and customer and supplier lists and information,
                other proprietary rights relating to any of the foregoing
                (including without limitation remedies against infringements
                thereof and rights of protection of interest therein under the
                laws of all jurisdictions) and copies and tangible embodiments
                thereof;

          (vi)  all rights under contracts, agreements or instruments;

          (vii) all claims, prepayments, refunds, causes of action, choses in
                action, rights of recovery, rights of setoff and rights of
                recoupment, including all rights under warranties;

          (viii) all permits, licenses, registrations, certificates, franchises,
                 variances and other similar rights;

          (ix)   all books, records, accounts, ledgers, files, documents,
                 correspondence, lists (customer or otherwise), product and 
                 sales literature, drawings or specifications, employment 
                 records, manufacturing and technical manuals, advertising and 
                 promotional materials, studies, reports and other printed or 
                 written materials;

          (x)    securities, partnership, joint venture or other equity 
                 interests in any other business entity; and

          (xi)   all claims and defenses relating to any of the foregoing or to
                 the liabilities assumed by Buyer pursuant to Section 2 below.

     2. ASSUMPTION OF LIABILITIES.

          (a) From and after the date hereof, SID shall assume any and all
liabilities, commitments and obligations of Thermo Fast or any of its
subsidiaries that result from any third party claim based upon the acts or
omissions of Thermo Fast or such subsidiaries on or after March 29, 1996 and
prior to the date hereof (the "Retained Liabilities").

          (b) From and after the date hereof, Buyer shall assume any and
all liabilities, commitments and obligations of HB of any nature, kind and
description except for the Excluded Liabilities (the "Liabilities"). "Excluded
Liabilities" means (i) any liabilities that do not relate primarily to the
business of the Affinity Division and (ii) all liabilities, commitments and
obligations of HB or any of its subsidiaries that result from any third party
claim based upon the acts or omissions of HB or such subsidiaries on or after
March 29, 1996 and prior to the date hereof.

     3. FURTHER ASSURANCES. At the request of Buyer at any time on or after the
date hereof, Sellers will execute and deliver such further instruments of
transfer and conveyance and take such other action as Buyer reasonably may
request effectively to assign and transfer to Buyer any of the Assets and/or the
Shares. At the request of Buyer at any time on or after the date hereof, SID
will execute and deliver such further instruments of assumption and take such
other action as Buyer may reasonably request effectively to assume the Retained
Liabilities. At the request of Sellers at any time on or after the date hereof,
Buyer will execute and deliver such further instruments of assumption and take
such other action as Seller may reasonably request effectively to assume the
Liabilities.

     4. REGARDING CERTAIN CONSENTS. Nothing in this Agreement shall be construed
as an attempt to assign any contract, agreement, permit, franchise, or claim
included in the Assets that is, by its term or in law, nonassignable without the
consent of the other party or parties thereto, unless such consent shall have
been given, or as to which all the remedies for the enforcement 

thereof enjoyed by HB would not, as a matter of law, pass to Buyer as an
incident of the assignments provided for by this Agreement. In order, however,
to provide Buyer the full realization and value of every contract, agreement,
permit, franchise and claim of the character described in the preceding
sentence, HB, on and after the date hereof by itself or by its agents, shall, at
the request and expense and under the direction of Buyer, in the name of HB or
otherwise as Buyer shall specify and as shall be permitted by law, take all such
reasonable action (including without limitation the appointment of Buyer as an
attorneys-in-fact for HB) and do or cause to be done all such things as shall in
the opinion of Buyer be necessary or proper (a) to assure that the rights and
obligations of HB under such contracts, agreements, permits, franchises, and
claims shall be preserved for the benefit of Buyer and (b) to facilitate receipt
of the consideration to be received by HB in and under every such contract,
agreement, permit, franchise, and claim, which consideration HB shall hold for
the benefit of, and upon request of Buyer shall deliver to, Buyer.

     5. SELLERS' REPRESENTATIONS AND WARRANTIES. Each Seller represents and
warrants that:

          (a) ORGANIZATION AND EXISTENCE. Such Seller is a company organized and
existing under the laws of its respective jurisdiction of organization.

          (b) APPROVAL OF TRANSACTIONS. Each Seller has obtained all necessary
corporate authorizations and approvals, and has taken all actions required for
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.

          (c) NO CONFLICT. Neither the execution nor delivery of this Agreement,
nor the consummation of the transactions herein contemplated, nor the
fulfillment of or compliance with the terms and provisions hereof will (1)
conflict with charter documents of such Seller, (2) violate any current
provisions of law, administrative regulation, or court decree applicable to such
Seller or (3) conflict with or result in a breach of any of the terms,
conditions or provisions of or constitute default under any material agreement
or instrument to which such Seller is a party or by which it is bound.

          (d) OWNERSHIP OF ASSETS AND SHARES; AUTHORITY TO TRANSFER. The
Assets and the Shares are not encumbered and are freely transferable by the
respective Seller. SID holds good and marketable title to the Shares and no
third party is entitled to claim any right thereto or make any claim thereon. HB
holds good and marketable title to the Assets and no third party is entitled to
claim any right thereto or make any claim thereon. The transfer of the Assets
and the Shares to Buyer pursuant to this Agreement will vest in Buyer title to
the Assets and the Shares, free and clear of all liens, claims, equities,
options, calls, voting trusts, agreements, commitments and encumbrances
whatsoever.

     6. BUYER'S REPRESENTATIONS AND WARRANTIES.

          (a) ORGANIZATION AND EXISTENCE. The Buyer is a company organized and
existing under the laws of its jurisdiction of organization.

          (b) APPROVAL OF TRANSACTIONS. The Buyer has obtained all necessary
corporate authorizations and approvals, and has taken all actions required for
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.

          (c) NO CONFLICT. Neither the execution nor delivery of this Agreement,
nor the consummation of the transactions herein contemplated, nor the
fulfillment of or compliance with the terms and provisions hereof will (1) the
charter documents of the Buyer, (2) violate any current provisions of law,
administrative regulation, or court decree applicable to the Buyer or (3)
conflict with or result in a breach of any of the terms, conditions or
provisions of or constitute default under any material agreement or instrument
to which the Buyer is a party or by which it is bound.

     7. INDEMNIFICATION.

          (a) Sellers jointly and severally agree to indemnify and hold
harmless Buyer from any and all damages, losses, liabilities, costs and expenses
(including, without limitation, settlement costs and any reasonable legal,
accounting or other expenses for investigating or defending any actions or
threatened actions) incurred by Buyer as a result of (i) the Retained
Liabilities, (ii) the Excluded Liabilities, (iii) the inaccuracy of any
representation or warranty contained in Section 5 hereof or (iv) the breach by
Sellers of any provision hereof.

          (b) Buyer agrees to indemnify and hold harmless Sellers from any
and all damages, losses, liabilities, costs and expenses (including, without
limitation, settlement costs and any reasonable legal, accounting or other
expenses for investigating or defending any actions or threatened actions)
incurred by Sellers as a result of (i) the Liabilities, (ii) the inaccuracy of
any representation or warranty contained in Section 6 hereof, or (iii) the
breach by Buyer of any provision hereof.

          (b) Whenever any claim shall arise for indemnification hereunder,
the party seeking indemnification (the "Indemnified Party") shall promptly
notify the other party or parties from whom indemnification is sought (as the
case may be, the "Indemnifying Party") of the claim and, when known, the facts
constituting the basis for such claim. In the event of any such claim for
indemnification hereunder resulting from or in connection with any claim or
legal proceedings by a third party, the notice to the Indemnifying Party shall
specify, if known, the amount or an estimate of the amount of the liability
arising therefrom. The Indemnified Party shall not settle or compromise any
claim by a third party for which the Indemnified Party is entitled to
indemnification hereunder without the prior consent of the Indemnifying Party,
unless suit shall have been instituted against the Indemnified Party and the
Indemnifying Party shall not have taken control of such suit after notification
thereof as provided in Section 7(c) of this Agreement.

          (c) In connection with any claim giving rise to indemnity
hereunder resulting from or arising out of any claim or legal proceeding by a
person who is not a party to this Agreement, the Indemnifying Party at its sole
cost and expense may, upon notice to the Indemnified Party, assume the defense
of any such claim or legal proceeding if it acknowledges to the Indemnified
Party its obligations to indemnify the Indemnified Party with respect to all

elements of such claim. The Indemnified Party shall be entitled to participate
in (but not control) the defense of any such action, with its counsel and at its
own expense. If the Indemnifying Party does not assume the defense of any such
claim or litigation resulting therefrom within 30 days after the date the
Indemnifying Party is notified of such claim pursuant to Paragraph 7(b) hereof,
(i) the Indemnified Party may defend against such claim or litigation, after
giving notice of the same to the Indemnifying Party, on such terms as are
appropriate in the Indemnified Party's reasonable judgment, and (ii) the
Indemnifying Party shall be entitled to participate in (but not control) the
defense of such action, with its counsel and at its own expense.

     8. RESTATED AGREEMENT. Sellers and Thermo hereby assign to Buyer, and Buyer
hereby accepts and assumes, their respective rights and obligations under the
Restated Agreement, and any agreements or instruments executed by Sellers or
Thermo in connection therewith, but only to the extent such rights and
obligations relate primarily to the business and assets hereby transferred to
Buyer. In furtherance of the foregoing, Buyer may enforce, in its own name and
in the name and on behalf of Sellers or Thermo, any of the rights of Thermo
under Section 11 of the Restated Agreement, and, if requested by Buyer, Sellers
and Thermo shall take such actions, at their own expense, as Buyer shall
reasonably request in order that Buyer shall have the full rights and benefits
granted to it under this Section 8.

     9. TRANSFER AND SALES TAX. Notwithstanding any provisions of law to the
contrary, Sellers shall be responsible for and shall pay (a) all sales and
transfer taxes, and (b) all governmental charges, if any, upon the sale or
transfer of any of the Assets and/or the Shares.

     10. EFFECTIVE DATE. The transfer of the Assets and the Shares shall be
deemed to be effective as of the close of business on the date hereof, for all
purposes, including federal income taxes and accounting.

     11. CAPTIONS. The captions and headings to the various sections, paragraphs
and exhibits of this Agreement are for convenience of reference only and shall
not affect or control the meaning or interpretation of any of the provisions of
this Agreement.

     12. INTEGRATION. This Agreement contains the entire understanding of the
parties hereto with respect to the subject matter contained herein.

     13. NOTICES AND COMMUNICATIONS. Any notice or other communication shall be
in writing and shall be personally delivered, or sent by overnight or second day
courier or by first class mail, return receipt requested, to the party to whom
such notice or other communication is to be given or made at such party's
address set forth below, or to such other address as such party shall designate
by written notice to the other party as follows:

     If to Sellers or Thermo Instrument Systems Inc.:

          Thermo Instrument Systems Inc.
          c/o Thermo Electron Corporation
          81 Wyman Street

          P.O. Box 9046
          Waltham, MA  02445-9046
          Attn.: General Counsel

If to Buyer:

          Thermo BioAnalysis Corporation
          c/o Thermo Electron Corporation
          81 Wyman Street
          P.O. Box 9046
          Waltham, MA  02445-9046
          Attn.: General Counsel

provided that any notice of change of address, and any notice or other
communication given otherwise than as specified above shall be effective only
upon receipt; and further that any presumption of receipt by the addressee shall
be inoperable during the period of any interruption in Postal Service.

     14. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by Sellers or Buyer in this Agreement shall survive the
execution and delivery of this Agreement.

     15. GOVERNING LAW; ASSIGNMENT. This Agreement is to be construed,
interpreted, applied and governed in all respects in accordance with the laws of
the Commonwealth of Massachusetts, without regard to its conflict of laws
provisions, is to take effect as a sealed instrument, is binding upon and inures
to the benefit of the parties hereto and their respect successors and assigns
and may be canceled, modified or amended only by a written instrument executed
by Sellers and Buyer. No party hereto may assign its rights hereunder without
prior written consent of the other party.

     16. GUARANTY. Thermo hereby unconditionally guarantees all of the
obligations of Sellers under this Agreement.

     17. COUNTERPARTS. This Agreement may be executed in counterparts, all of
which together shall for all purposes constitute one Agreement, binding on the
parties hereto notwithstanding that such parties have not signed the same
counterpart.

     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.

SELLERS:

SID INSTRUMENTS INC.                           HB INSTRUMENTS INC.

By:  /s/ Earl R. Lewis                         By:  /s/ Earl R. Lewis
     -----------------                              -----------------
Title:  President                              Title:  President

BUYER:                                         THERMO:

THERMO BIOANALYSIS                             THERMO INSTRUMENT SYSTEMS INC.
CORPORATION

By:  /s/ Barry S. Howe                         By:  /s/ Jonathan W. Painter
     -----------------                              -----------------------
Title:  President                              Title:  Treasurer

 

Basic Info X:

Name: ASSET AND SHARE PURCHASE AGREEMENT
Type: Purchase Agreement
Date: July 24, 1996
Company: THERMO BIOANALYSIS CORP /DE
State: Delaware

Other info:

Date:

  • July 22 , 1996
  • March 29 , 1996

Organization:

  • SID Instruments Inc.
  • HB Instruments Inc.
  • Thermo Fast UK Limited
  • Restated Asset and Stock Purchase Agreement
  • Closing Balance Sheet
  • Thermo Instrument Systems Inc.
  • Thermo BioAnalysis Corporation co Thermo Electron Corporation 81 Wyman Street P.O
  • Commonwealth of Massachusetts
  • THERMO BIOANALYSIS THERMO INSTRUMENT SYSTEMS INC

Location:

  • Delaware
  • England
  • Waltham
  • MA

Money:

  • $ 3,500,000
  • $ 1,053,000

Person:

  • Earl R. Lewis
  • Barry S. Howe
  • Jonathan W. Painter

Percent:

  • 100 %