EXHIBIT 10.2
TERMINATION AGREEMENT AND GENERAL RELEASE
THIS TERMINATION AGREEMENT AND GENERAL RELEASE (this "Agreement") is
made and entered into as of March 20, 1998, by and between THERMO XXXXXXX XXX
CORPORATION, a Massachusetts corporation having a place of business at 0 Xxxx
Xxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000 ("TJA"), and THERMO INSTRUMENT
SYSTEMS INC., a Delaware corporation having a place of business at 000 Xxxx
Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxx 00000 ("Thermo Instrument"), on the one
part, and TOP SOURCE INSTRUMENTS, INC. (formerly known as On-Site Analysis,
Inc.), a Georgia corporation having a place of business at 0000 Xxxxxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("TSI"), and TOP SOURCE TECHNOLOGIES,
INC., a Delaware corporation having a place of business at 0000 Xxxxxxx Xxxxx,
Xxxxx 000, Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000 ("Top Source"), on the other part.
TJA, Thermo Instrument, TSI and Top Source are hereinafter sometimes
collectively referred to as the "Parties."
WITNESSETH:
WHEREAS, the Parties entered into an Agreement dated as of March 3,
1995, a copy of which is attached hereto as Exhibit A (the "Original
Agreement"), whereby the Parties agreed to develop, manufacture and market, upon
the terms and conditions set forth in the Original Agreement, an integrated
instrument combining an optical emission spectrometer with spark excitation and
a Fourier transform infrared spectrometer to be used for the analysis of mineral
oils, synthetic oils and hydraulic fluids (the "OSA"); and
WHEREAS, the Parties desire to terminate the Original Agreement upon
the terms and subject to the conditions more particularly set forth herein;
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto
agree as follows:
1. Termination of Original Agreement. The Parties hereby agree that the
Original Agreement shall be terminated effective as of March 31, 1998
(the "Termination Date"), as though such Termination Date were set
forth in the Original Agreement as the expiration date of the term
thereof. It is expressly understood and agreed that the termination of
the Original Agreement shall in no event be deemed a termination by TJA
pursuant to the provisions of Section 15.2.5 of the Original Agreement.
2. Security Deposit. On or before the Termination Date, TJA shall
deliver to TSI an amount equal to $285,000, representing a portion of
the Security Deposit currently held by TJA in accordance with Section
6.9 of the Original Agreement. From and after the Termination Date, the
balance of the Security Deposit in the amount of $365,000 shall be
retained by TJA as it sole and exclusive property.
3. Technical Contributions: From and after the Termination Date, TJA
and TSI shall each remain fully vested with all right, title and
interest (as owner, licensee or designee, as the case may be) in and to
its respective Technical Contributions (as defined in Section 1.14 of
the Original Agreement).
4. Thermo Marks. On or before the Termination Date, TSI shall remove
all trademarks, trade names, service marks and trade dress of TJA,
Thermo Instrument, Nicolet Instrument Corporation and/or Thermo Optek
Corporation (collectively, the "Thermo Marks") from all OSAs and
replacement parts therefor in the possession of TSI and/or Top Source
(the OSAs and replacement parts are hereinafter sometimes collectively
referred to as the "Products"). From and after the Termination Date,
TSI and Top Source shall cease all use of the Thermo Marks, including
without limitation in connection with the sale, leasing, licensing,
sublicensing, distribution or marketing of the Products (or related
services); provided, however, that TSI and Top Source agree not to
remove or obscure any notice of copyright, patent, trademark, trade
secret or restricted or limited rights which may be contained on the
Instrument Software (as defined in Section 1.3 of the Original
Agreement) and/or of TJA's Technical Contributions. It is further
understood and agreed that, from and after the Termination Date,
neither TSI nor Top Source shall identify TJA (or any parent,
subsidiary, affiliate or division of TJA) as the manufacturer of the
Products.
5. Existing Inventory. On or before the Termination Date, TJA shall
deliver to TSI the inventory of Products listed in Exhibit B attached
hereto and incorporated herein by this reference (the "Inventory"). The
Inventory is currently located at facilities of two of TJA's affiliates
in Grand Junction, Colorado and Madison, Wisconsin, respectively. The
Inventory will be shipped to the destination specified by TSI, F.O.B.
said facilities. TJA will select the carrier for shipment of the
Inventory, but in no event will TJA be deemed to assume any liability
in connection with such shipment nor will the carrier be deemed to be
the agent of TJA. TSI agrees to have a representative present at each
of the aforesaid facilities to oversee the delivery of the Inventory to
the carrier and to confirm that the Inventory so delivered is
consistent with that listed in Exhibit B hereto. Delivery of possession
of the Inventory to the carrier will constitute agreement by TSI that
the Inventory as delivered to the carrier is in conformance with the
list set forth in Exhibit B hereto. The Inventory will be insured in
transit at the expense of TSI. Title to and risk of loss of the
Inventory will pass to TSI upon delivery of possession of the Inventory
to the carrier. Any claims for damage to, or loss or misdelivery of,
the Inventory will be filed directly with the carrier by TSI. It is
expressly understood and agreed that the Inventory is being conveyed to
TSI on an "AS IS, WHERE IS" basis. TJA DISCLAIMS ALL WARRANTIES,
WHETHER EXPRESSED OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE
INVENTORY, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. TJA DOES NOT
WARRANT THAT THE INVENTORY IS ERROR-FREE OR WILL ACCOMPLISH ANY
PARTICULAR RESULT.
6. Survival.
6.1 Notwithstanding anything to the contrary contained herein,
the provisions of Section 3.1, Section 3.2.4, Section 3.3.2, Section 10.2,
Article 13, Article 14 and, to the extend related to the foregoing, Articles 16
and 17 of the Original Agreement, shall survive the termination of the Original
Agreement.
6.2 Solely with respect to OSAs and Inventory purchased form
TJA and paid for by TSI pursuant to the Original Agreement or this Agreement, as
the case may be, and solely in connection with the normal operation thereof, TSI
and Customers (as defined in Section 1.1 of the Original Agreement) shall have,
without payment of additional consideration, the continuing perpetual and
worldwide non-exclusive right and license to use, license and, with respect to
TSI only, sublicense, "AS IS, WHERE IS," the Instrument Software (as defined in
Section 1.3 of the Original Agreement) and Technical Contributions of TJA and to
install and reinstall such OSAs with existing or new Customers, all without
restriction except, (i) with respect to TSI, as provided in those Sections of
the Original Agreement which shall survive, in accordance with the provisions of
Subsection 6.1 above, the termination of the Original Agreement, and (ii) with
respect to any Customer, as provided for the benefit of TJA in any applicable
Customer Agreement (as defined in Article 12 of the Original Agreement). TJA
agrees to consent to the assignment by TSI of its rights under this Subsection
6.2 to any party which enters into a joint venture or similar relationship with
TSI or to any successor of TSI (including any third party which purchases all or
part of the assets of TSI), provided any such assignee executes an agreement, in
form acceptable to TJA, whereby said assignee agrees to be bound by the
restrictions imposed upon, and the indemnification and other applicable
obligations of, TSI pursuant to those Sections of the Original Agreement which
survive the termination of the Original Agreement.
7. Release.
7.1 TSI and Top Source each hereby releases, holds harmless
and forever discharges TJA, Thermo Instrument and their respective parents,
subsidiaries, affiliates, divisions, successors and assigns, including without
limitation Thermo Optek Corporation and Nicolet Instrument Corporation
(collectively, the "Thermo Parties"), of and from any and all past, present and
future actions, causes of action, rights, claims, demands, liabilities, losses,
costs, expenses and compensation (including without limitation claims for fraud,
breach of contract, breach of fiduciary duty, negligence, rescission,
restitution, compensatory damages, punitive damages, penalties, specific
performance or injunctive or declamatory relief), which TSI and/or Top Source
ever had, now has or may have against any of the Thermo Parties arising from or
in connection with the Original Agreement, including without limitation the
development, manufacture, marketing, sale, leasing, licensing, sublicensing or
distribution of the Products. Without in any way limiting the foregoing, it is
expressly understood and agreed that the Thermo Parties shall have no liability
for errors in, or other failures in or degradation of performance of, the
Instrument Software due to Year 2000 issues. Notwithstanding anything to the
contrary contained herein, it expressly understood and agreed that the foregoing
provisions of this Subsection 7.1 shall not apply to any liabilities or
obligations of TJA or Thermo Instrument under those provisions of the Original
Agreement which are expressly stated in Section 6 above to survive the
termination of the Original Agreement.
7.2 TJA and Thermo Instrument each hereby releases, holds
harmless and forever discharges TSI, Top Source, and their respective parents,
subsidiaries, affiliates, divisions, successors and assigns (collectively, the
"TSI Parties"), of an from any and all past, present and future actions, causes
of action, rights, claims, demands, liabilities, losses, costs, expenses and
compensation (including without limitation claims for fraud, breach of contract,
breach of fiduciary duty, negligence, rescission, restitution, compensatory
damages, punitive damages, penalties, specific performance or injunctive or
declaratory relief), which TJA and/or Thermo Instrument ever had, now has or may
have against any of the TSI Parties arising from or in connection with the
Original Agreement, including without limitation the development, manufacturer,
marketing, sale, leasing, licensing, sublicensing or distribution of the
Products. Notwithstanding anything to the contrary contained herein, it is
expressly understood and agreed that the foregoing provisions of this Subsection
7.2 shall not apply to any liabilities or obligations of TSI or Top Source under
those provisions of the Original Agreement which are expressly stated in Section
6 above to survive the termination of the Original Agreement.
7.3 Each of the Parties hereto acknowledges that (i) this
Agreement contains the resolution of a fully matured set of facts and each of
the Parties individually declares and represents that it is executing this
Agreement in reliance solely on its own judgment, belief and knowledge of the
facts surrounding the transactions described in this Agreement, and upon advice
of its legal counsel, (ii) this Agreement is made without reliance upon any
statement or representation not contained in this Agreement of any other of the
Parties to this Agreement or any representative, agent or attorney of any of the
other Parties to this Agreement, (iii) no promise, inducement or agreement not
expressed in this Agreement has been made to any of the Parties to this
Agreement and (iv) the terms and conditions contained in this Agreement are
contractual and not mere recitals.
7.4 Each of the Parties hereto represents, warrants and agrees
that in executing this Agreement, it does so with full knowledge of any and all
rights it may have with respect to the other Parties and that it has received,
or had the opportunity to receive, independent legal advice from its attorneys
with respect to the facts involved in the controversy resolved by this Agreement
and with regard to its rights and asserted rights arising out of such facts.
8. Notices. Whenever, by the terms of this Agreement, notice, demand or
other communication shall or may be given to any Party hereunder, the same shall
be in writing and addressed as follows:
Thermo Xxxxxxx Xxx Corporation
00 Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Attn: President
With copies to: Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: General Counsel
and
Thermo Optek Corporation
0 Xxxx Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: President
If to Thermo Instrument: Thermo Instrument Systems Inc.
000 Xxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxx, XX 00000
Attn: President
with a copy to: Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: General Counsel
If to one or more of Top Source Technologies, Inc.
TSI and 0000 Xxxxxxx Xxxxx, Xxxxx 000
Top Source: Xxxx Xxxxx Xxxxxxx, XX 00000-0000
Attn: President
or to such other address or addresses as shall from time to time be designated
by written notice by any Party to the others as herein provided. All notices
shall be sent by registered or certified mail, postage pre-paid and return
receipt requested, or by Federal Express or other comparable courier service
providing proof of delivery, and shall be deemed duly given and received (i) if
mailed, on the third business day following the mailing thereof, or (ii) if sent
by courier service, the date of its receipt (or, if such day is not a business
day, the next succeeding business day).
9. Miscellaneous. Any and all rights and remedies which any of the
Parties may have under this Agreement, at law or in equity, shall be cumulative
and shall not be deemed inconsistent with each other, and any two or more of all
such rights and remedies may be exercised at the same time insofar as permitted
by law. No delay or omission on the part of any of the Parties to this Agreement
in requiring performance by any of the other Parties or in exercising any right
hereunder shall operate as a waiver of any provision hereof or of any right
hereunder, and the waiver, omission or delay in requiring performance or
exercising any right hereunder on any one occasion shall not be construed as a
bar to or waiver of such performance or right on any future occasion. This
Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, without giving effect to its principles of
conflict of laws. This Agreement constitutes the entire agreement between the
Parties with respect to the subject matter hereof and shall not be supplemented,
amended, varied or modified in any manner except by an instrument in writing
signed by a duly authorized representative of each of the Parties. This
Agreement shall be binding upon and shall inure to the benefit of the Parties
hereto and their respective successors and assigns. The individuals executing
this Agreement hereby represent and warrant that they are empowered and duly
authorized to so execute this Agreement on behalf of the Parties they represent.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
under seal as of the date first set forth above.
TOP SOURCE INSTRUMENTS, INC. THERMO XXXXXX XXX CORPORATION
By: Xxxxx Xxxxx By: Xxxxxx X. Rosenthal_________
Name: Xxxxx Natan____________ Name:Xxxxxx X. Rosenthal_____
Title: Vice President and_________ Title: President_____
Chief Financial Officer
TOP SOURCE TECHNOLOGIES, INC. THERMO INSTRUMENT SYSTEMS INC.
By: Xxxxx Natan____________ By: _____________________________
Name: Xxxxx Natan____________ Name: ___________________________
Title: Vice President and________ Title: President and CEO______
Chief Financial Officer
