INDEMNIFICATION AGREEMENT
This Agreement is made as of November 4, 1996 between Thermo
Instrument Systems Inc., a Delaware corporation ("THI"), and
Thermo Optek Corporation, a Delaware corporation ("TOC").
WHEREAS, on March 29, 1996 THI, directly and through its
subsidiaries, purchased certain businesses of Fisons plc (the
"Fisons Businesses") pursuant to an Amended and Restated Asset
and Stock Purchase Agreement dated as of such date (the "Restated
Agreement"); and
WHEREAS, THI and TOC have agreed that the ARL and Elemental
Fisons Businesses (the "TOC Businesses") shall be sold by THI to
TOC; and
WHEREAS, the sale by THI, and the purchase by TOC, of the
TOC Businesses shall be made pursuant to a number of purchase and
sale agreements among subsidiaries of TOC, THI and subsidiaries
of THI (the "Transfer Agreements"); and
WHEREAS, THI and TOC desire to make certain provisions for
(i) THI's indemnification of TOC and its subsidiaries for certain
liabilities of the TOC Businesses and (ii) TOC's indemnification
of THI and its subsidiaries for certain liabilities of the TOC
Businesses.
NOW, THEREFORE, THI and TOC hereby agree as follows:
1. Indemnification.
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(a) THI shall indemnify and hold harmless TOC and its
subsidiaries 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 TOC or any of its subsidiaries as a result of:
(i) any third party claims based on the acts or
omissions of THI or any of its subsidiaries (including any
subsidiaries subsequently sold to TOC) on or after March 29, 1996
and prior to the date hereof; or
(ii) the breach by THI or any of its subsidiaries
of any representation, warranty, covenant or agreement contained
in any of the Transfer Agreements.
(b) TOC shall indemnify and hold harmless THI and its
subsidiaries form any and all damages, losses, liabilities, costs
and expenses (including, without limitation, settlement costs and
any reasonable legal, accounting or other expenses for
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investigating or defending any actions or threatened actions)
incurred by THI or any of its subsidiaries (other than
subsidiaries acquired by TOC) as a result of any liability of the
TOC Businesses other than a liability (i) as to which TOC and its
subsidiaries are entitled to indemnification by THI hereunder or
(ii) that is expressly retained by THI or any of its subsidiaries
pursuant to any Transfer Agreement.
(c) Whenever any claim shall arise for indemnification
hereunder, 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 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 2(d) of this Agreement.
(d) 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 2(c) 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.
3. Restated Agreement. THI hereby assigns to TOC, and TOC
hereby accepts and assumes, the rights and obligations of THI
under the Restated Agreement, and any agreements or instruments
executed by THI in connection therewith, but only to the extent
such rights and obligations relate primarily to the TOC
Businesses. In furtherance of the foregoing, TOC may enforce, in
its own name and in the name and on behalf of THI, any of the
rights of THI under Section 11 of the Restated Agreement, and, if
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requested by TOC, THI shall take such actions, at its own
expense, as TOC shall reasonably request in order that TOC shall
have the full rights and benefits granted to it under this
Section 3.
4. 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.
5. Integration. This Agreement contains the entire
understanding of the parties hereto with respect to the subject
matter contained herein.
6. 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 THI:
Thermo Instrument Systems Inc.
c/o Thermo Electron Corporation
00 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Attn: General Counsel
If to TOC:
Thermo Optek Corporation
00 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
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.
7. 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
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written instrument executed by THI and TOC. No party hereto may
assign its rights hereunder without prior written consent of the
other party.
PAGE
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
THERMO INSTRUMENT SYSTEMS INC.
By: Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Executive Vice President and Chief
Operating Officer
THERMO OPTEK CORPORATION
By: Xxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxx
Senior Vice President
