ASSET TRANSFER AGREEMENT

 

                                                                   EXHIBIT 10.12

                            ASSET TRANSFER AGREEMENT

         This AGREEMENT is dated as of December 31, 1995 by and among Nicolet
Instrument Corporation ("Nicolet"), a Wisconsin corporation, and Thermo Optek
Corporation ("Optek"), a Delaware corporation, and for purposes of Section 15
hereof, Thermo Instrument Systems Inc., a Delaware corporation ("Thermo").

         WHEREAS, Nicolet desires and intends to transfer substantially all of
Nicolet's property and assets, real, personal and mixed, tangible and
intangible, including, without limitation, all of the outstanding shares of
capital stock of Thermo Jarrell Ash Corporation, to Optek in exchange for
29,999,000 shares of the common stock of Optek (the "Shares");

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

         1. Transfer of Assets to Optek. Nicolet hereby assigns, transfers,
conveys, and delivers to Optek all of Nicolet's property, assets and rights,
real, personal and mixed, tangible and intangible, except for the capital stock
of Nicolet Instrument Canada, Inc., Nicolet Instruments Limited, Project Phoenix
of Madison, Inc. and ThermoSpectra Corporation (the "Excluded Subsidiaries")
(collectively, the "Assets"). The Assets include, but are not limited to, the
following:

         (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, date
                  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
                  actions, 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, except for the
                  Excluded Subsidiaries; and

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

         2. Assumption of Liabilities. From and after the date hereof, Optek
shall assume any and all liabilities, commitments and obligations of Nicolet of
any nature, kind and description except for the Excluded Liabilities (the
"Liabilities"). "Excluded Liabilities" means all liabilities, commitments and
obligations of Nicolet or any of its subsidiaries that result from any third
party claim based upon the acts or omissions of Nicolet or such subsidiaries
prior to the date hereof.

         3. Further Assurances. At the request of Optek at any time on or after
the date hereof, Nicolet will execute and deliver such further instruments of
transfer and conveyance and take such other action as Optek reasonably may
request effectively to assign and transfer to Optek any of the Assets. At the
request of Nicolet at any time on or after the date hereof, Optek will execute
and deliver such further instruments of assumption and take such other action as
Nicolet 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 Nicolet would not, as a matter of law, pass to Optek as an
incident of the assignments provided for by this Agreement. In order, however,
to provide Optek the full realization and value of every contract, agreement,
permit, franchise and claim of the character described in the preceding
sentence, Nicolet, on and after the date hereof by itself or by its agents,
shall, at the request and expense and under the direction of Optek, in the name
of Nicolet or otherwise as Optek shall specify and as shall be permitted by law,
take all such reasonable action (including without limitation the appointment of
Optek as an attorney-in-fact for Nicolet) and do or cause to be done all such
things as shall in the opinion of Optek be necessary or proper (a) to assure
that the rights and obligations of Nicolet under such contracts, agreements,
permits, franchises, and claims shall be preserved for the benefit of Optek and
(b) to facilitate receipt of the consideration to be received by Nicolet in and
under every such contract, agreement, permit, franchise, and claim, which
consideration Nicolet shall hold for the benefit of, and upon request of Optek
shall deliver to, Optek.

         5.       Nicolet's Representations and Warranties. Nicolet represents
                  and warrants that:

                  (a) Organization and Standing. Nicolet is a corporation duly
         organized, validly existing and in good standing under the laws of the
         State of Wisconsin.

                  (b) Approval of Transactions. Nicolet 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) Title to the Assets. Nicolet is the true and lawful owner
         of, and has good and marketable title to, the Assets free and clear of
         all liens, mortgages, leases, conditional sales agreements, title
         retention agreements, or any other encumbrance. Upon consummation of
         the transfer of the Assets by Nicolet to Optek, Optek will be the
         lawful owner of, and have marketable title to, the Assets, free and
         clear of all liens, mortgages, or other encumbrances.

                  (d) No Litigation. Nicolet is not engaged in, or to the
         knowledge of Nicolet's management, threatened with any material legal
         action or other proceeding before any court, administrative agency,
         governmental department or arbitrator.

                  (e) Compliance with Contracts. Nicolet is in compliance in all
         material respects with all unwaived terms and provisions of all
         material contracts, commitments and engagements entered into prior to
         or on the date hereof; and the same are in full force and effect and
         constitute legal, valid and binding obligations of the respective
         parties thereto, enforceable in accordance with their terms except as
         limited by bankruptcy, insolvency, reorganization, moratorium or
         similar laws relating to or affecting generally the enforcement of
         creditors' rights, and have not been assigned or encumbered by Nicolet.
         Nicolet has performed, in all material respects, obligations required
         to be performed under all such material contracts, commitments and
         engagements to date and is not in default in any material respect under
         any of said contracts, commitments and engagements.

                  (f) 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, to the best of Nicolet's knowledge, (1) violate
         any current provisions of law, administrative regulation, or court
         decree applicable to Nicolet or (2) conflict with or result in a breach
         of any of the terms, conditions or provisions of or constitute default
         under any agreement or instrument to which Nicolet is a party or by
         which it is bound.

         6.       Optek's Representations and Warranties.

                  (a) Organization and Standing. Optek is a corporation duly
         organized, validly existing and in good standing under the laws of the
         State of Delaware.

                  (b) Approval of Transactions. Optek 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) Issuance of Shares. The issuance of the Shares has been
duly authorized by all necessary corporate action, and the Shares, when issued
pursuant to the terms of this Agreement, will be fully paid, non-assessable and
not subject to any pre-emptive rights.

         7.       Indemnification by Nicolet.

                  (a) Nicolet agrees to indemnify and hold harmless Optek 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 Optek as a result of (i) the Excluded Liabilities or (ii) the
inaccuracy of any representation or warranty contained in Section 5 hereof.

                  (b) Whenever any claim shall arise for indemnification
hereunder, Optek shall promptly notify Nicolet 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 Nicolet shall specify, if
known, the amount or an estimate of the amount of the liability arising
therefrom. Optek shall not settle or compromise any claim by a third party for
which Optek is entitled to indemnification hereunder without the prior consent
of Nicolet, unless suit shall have been instituted against Optek and Nicolet
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, Nicolet at its sole cost and
expense may, upon notice to Optek, assume the defense of any such claim or legal
proceeding if it acknowledges to Optek its obligations to indemnify Optek with
respect to all elements of such claim. Optek shall be entitled to participate in
(but not control) the defense of any such action, with its counsel and at its
own expense. If Nicolet does not assume the defense of any such claim or
litigation resulting therefrom within 30 days after the date Nicolet is notified
of such claim pursuant to Paragraph 7(b) hereof, (i) Optek may defend against
such claim or litigation, after giving notice of the same to Nicolet, on such
terms as are appropriate in Optek's reasonable judgment, and (ii) Nicolet shall
be entitled to participate in (but not control) the defense of such action, with
its counsel and at its own expense.

         8. Transfer and Sales Tax. Notwithstanding any provisions of law to the
contrary, Nicolet 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.

         9. Effective Date. The transfer of the Assets shall be deemed to be
effective as of the close of business on the date first above written, for all
purposes, including federal income taxes and accounting.

         10. 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.

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

         12. Notice of Communication. 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 Nicolet:

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

         If to Optek:

                  Thermo Optek 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.

         13. Survival of Representations and Warranties. All representations and
warranties made by Nicolet or Optek in this Agreement shall survive the
execution and delivery of this Agreement.

         14. 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 Nicolet and Optek. No party hereto may assign its rights hereunder without
prior written consent of the other party.

         15. Guaranty. Thermo hereby unconditionally guarantees all of the
obligations of Nicolet under this Agreement.

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

                            NICOLET INSTRUMENT CORPORATION

                            By /s/ Robert J. Rosenthal
                              -----------------------------------
                                  Robert J. Rosenthal
                                  President

                            THERMO OPTEK CORPORATION

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

                            THERMO INSTRUMENT SYSTEMS INC.

                            By: /s/ Arvin H. Smith
                               ----------------------------------
                                  Arvin H. Smith
                                  President 

Basic Info X:

Name: ASSET TRANSFER AGREEMENT
Type: Asset Transfer Agreement
Date: June 4, 1996
Company: THERMO OPTEK CORP
State: Delaware

Other info:

Date:

  • December 31 , 1995

Organization:

  • Thermo Instrument Systems Inc.
  • Thermo Jarrell Ash Corporation
  • Nicolet Instrument Canada , Inc.
  • Nicolet Instruments Limited
  • Project Phoenix of Madison , Inc.
  • the State of Wisconsin
  • Nicolet to Optek
  • Organization and Standing
  • the State of Delaware
  • b Approval of Transactions
  • Nicolet Instrument Corporation co Thermo Electron Corporation 81 Wyman Street P.O
  • Thermo Optek Corporation co Thermo Electron Corporation 81 Wyman Street P.O
  • Commonwealth of Massachusetts

Location:

  • Wisconsin
  • Delaware
  • Nicolet
  • Optek
  • Waltham
  • MA

Person:

  • Optek
  • Robert J. Rosenthal
  • Earl R. Lewis
  • Arvin H. Smith