Exhibit 99.3
Execution Copy
PLAN AND AGREEMENT OF DISTRIBUTION
THIS PLAN AND AGREEMENT OF DISTRIBUTION (this "Agreement") is entered into
as of November 15, 2001, between Thermo Electron Corporation, a Delaware
corporation ("Thermo Electron"), and Viasys Healthcare Inc., a Delaware
corporation ("Viasys").
RECITALS
WHEREAS, Thermo Electron is the holder of all of the issued and
outstanding shares of Common Stock, $.01 par value per share, of Viasys ("Viasys
Common Stock; and
WHEREAS, Thermo Electron has contributed certain technology and certain
assets to Viasys and intends to make other arrangements to establish Viasys as a
separate enterprise for the purpose of engaging in the design, manufacture and
sale of medical devices and instruments in the fields of respiratory care,
neurocare and specialty medical products; and
WHEREAS, it is the intention of Thermo Electron to distribute all of the
issued and outstanding shares of Viasys Common Stock held by Thermo Electron to
the stockholders of Thermo Electron (the "Distribution"); and
WHEREAS, Thermo Electron and Viasys have determined that it is necessary
and desirable to set forth the principal corporate transactions required to
effect the Distribution and to set forth other agreements that will govern
certain other matters following such Distribution;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
made herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 GENERAL. As used in this Agreement and the Exhibits hereto, the
following terms shall have the following meanings:
"Action" means any action, claim, suit, litigation, arbitration,
inquiry, subpoena, discovery request, proceeding or investigation by or
before any court or grand jury, any governmental or other regulatory or
administrative agency or commission or any arbitration tribunal.
"Active Employees" means, with respect to each Group, all employees
actively engaged in the performance of services to, for or on behalf of
any member of such Group as of the Distribution Date, including any
employee who is not actively performing services because of (a) leave of
absence or (b) disability, and the dependents of such persons (and, as
applicable, the alternate payees of such persons). "Active Employees"
includes, with respect to a Group, non-employee directors of Thermo
Electron and Viasys providing services as a director to Thermo Electron or
any member of the Thermo Electron Group and Viasys or any member of the
Viasys Group, respectively, as of the Distribution Date.
"Affiliate" means, with respect to any specified person, a person
that, directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, such
specified person; provided, however, that Thermo Electron (and its
Subsidiaries) shall not be deemed to be Affiliates of Viasys (and its
Subsidiaries), and vice versa, for purposes of this Agreement.
"Agent" means American Stock Transfer & Trust Company, as the
distribution agent appointed by Thermo Electron to distribute the shares
of Viasys Common Stock in connection with the Distribution.
"Ancillary Agreements" means all of the agreements, instruments,
understandings, assignments or other arrangements entered into in
connection with the transactions contemplated hereby, including the Tax
Matters Agreement, the Transition Services Agreement and the Promissory
Note.
"Code" means the Internal Revenue Code of 1986, as amended, together
with the rules and regulations promulgated thereunder.
"Commission" means the Securities and Exchange Commission.
"Distributed Viasys per Share Amount" means the fraction of a share
of Viasys Common Stock obtained by dividing the number of Distribution
Shares (as defined in Section 4.1 hereof) by the total number of shares of
Thermo Electron Common Stock outstanding as of 4:00 p.m., Boston Time, on
the Distribution Record Date.
"Distribution" has the meaning ascribed to it in the Recitals.
"Distribution Date" means the date of effecting the Distribution, as
determined by the Thermo Electron Board.
"Distribution Record Date" means the date determined by the Thermo
Electron Board as of which the holders of Thermo Electron Common Stock and
their respective stock holdings shall be determined for purposes of
distributing Viasys Common Stock to such Thermo Electron stockholders.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, together with the rules and regulations promulgated thereunder.
"Form 10" means the Registration Statement on Form 10 to be filed by
Viasys with the Commission to effect the registration of the Viasys Common
Stock pursuant to the Exchange Act.
"Group" means the Thermo Electron Group or the Viasys Group.
"Indemnifiable Losses" means all losses, Liabilities, damages,
claims, counterclaims, demands, judgments or settlements of any nature or
kind, known or unknown, fixed, accrued, absolute or contingent, liquidated
or unliquidated, including all reasonable costs and expenses (legal,
accounting or otherwise as such costs are incurred)
relating thereto, suffered by an Indemnitee, including any reasonable
costs or expenses of enforcing any indemnity hereunder.
"Indemnifying Party" means a Person who or which is obligated under
this Agreement to provide indemnification.
"Indemnitee" means a Person who or which may seek indemnification
under this Agreement.
"Information Statement" means the Information Statement,
constituting a part of the Form 10, in the form to be distributed to the
holders of Thermo Electron Common Stock in connection with the
Distribution, and as it may be amended or supplemented subsequent to such
dissemination.
"IRS Ruling" means the letter dated February 2001 from the Internal
Revenue Service to Thermo Electron in response to the Private Letter
Ruling Request.
"Liabilities" means any and all debts, liabilities and obligations,
absolute or contingent, mature or unmature, liquidated or unliquidated,
accrued or unaccrued, known or unknown, whenever arising (unless otherwise
specified in this Agreement), and whether or not the same would properly
be reflected on a balance sheet, including all costs and expenses relating
thereto, and those debts, liabilities and obligations arising under any
law, rule, regulation, Action, threatened Action, order or consent decree
of any governmental entity or any award of any arbitrator of any kind, and
those arising under any contract, commitment or undertaking.
"Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization or a government or any department or agency thereof.
"Private Letter Ruling Request" means Thermo Electron's Request for
Rulings Filed Under Section 355 of the Code dated April 7, 2000 filed with
the Internal Revenue Service in connection with the Distribution, as
amended.
"Promissory Note" means the promissory note of Viasys in favor of
Thermo Electron substantially in the form attached hereto as Exhibit A,
with such changes as may be mutually satisfactory to Thermo Electron and
Viasys; such promissory note providing for, among other things, the
repayment by Viasys to Thermo of a loan in the principal amount of $33.3
million.
"Representative" means, with respect to any Person, any of such
Person's directors, officers, employees, agents, consultants, advisors,
accountants, attorneys and representatives.
"Securities Act" means the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"Subsidiary" means, with respect to any specified Person, any
corporation or other legal entity of which such Person or any of its
Subsidiaries controls or owns, directly or indirectly, more than 50% of
the stock or other equity interest entitled to vote on the election of
members to the board of directors or similar governing body; provided,
however, that for purposes of this Agreement, Viasys and the Viasys
Subsidiaries shall not be deemed to be Subsidiaries of Thermo Electron or
any of the Thermo Electron Subsidiaries.
"Tax Matters Agreement" means the Tax Matters Agreement between
Thermo Electron and Viasys substantially in the form attached hereto as
Exhibit B, with such changes as may be mutually satisfactory to Thermo
Electron and Viasys; such Tax Matters Agreement providing for, among other
things, the allocation of certain liabilities with respect to federal,
state and local income taxes and the procedures for filing returns with
respect to such taxes.
"Thermo Electron Board" means the Board of Directors of Thermo
Electron or a committee thereof.
"Thermo Electron Business" means all of the businesses and
operations conducted at any time, whether prior to, on or after the
Distribution Date, by any member of the Thermo Electron Group (including
Kadant Inc. and its subsidiaries), other than the Viasys Business.
"Thermo Electron Common Stock" means the Common Stock, $1.00 par
value per share, of Thermo Electron.
"Thermo Electron Group" means Thermo Electron and the Thermo
Electron Subsidiaries.
"Thermo Electron Indemnitees" means Thermo Electron, each Affiliate
of Thermo Electron (including Kadant Inc. and its Subsidiaries) and each
of their respective Representatives and each of the heirs, executors,
successors and assigns of any of the foregoing.
"Thermo Electron Subsidiaries" means all Subsidiaries of Thermo
Electron, other than Viasys and the Viasys Subsidiaries.
"Thermo Electron Trademarks" means the "Thermo" name and logo and
related tradenames and marks used in the Viasys Business as of the
Distribution Date.
"Third-Party Claim" means any claim, suit, arbitration, injury,
proceeding or investigation by or before any court, any governmental or
other regulatory or administrative agency or commission or any arbitration
tribunal asserted by a Person who or which is neither a party hereto nor
an Affiliate of a party hereto.
"TMO Letter of Credit Guarantees" means all of the obligations of
any member of the Viasys Group under all letters of credit and other
borrowings of any member of the Viasys Group that are subject to any
guarantee, covenant, indemnity, letter of comfort or similar assurance
provided by any member of the Thermo Electron Group (other than members of
the Viasys Group) and that are outstanding as of the Distribution Date.
"Transition Services Agreement" means the Transition Services
Agreement between Thermo Electron and Viasys substantially in the form
attached hereto as
Exhibit C, with such changes as may be mutually satisfactory to Thermo
Electron and Viasys; such Transition Services Agreement providing for
Thermo Electron's provision to Viasys of various administrative services,
including certain tax and legal, stock plan related, financial and other
services.
"Viasys Assets" means all of the assets owned by any member of the
Viasys Group immediately prior to the Distribution Date, excluding items
to be retained by any member of the Thermo Electron Group pursuant to the
Ancillary Agreements.
"Viasys Board" means the Board of Directors of Viasys.
"Viasys Business" means all of the businesses and operations
conducted at any time, whether prior to, on or after the Distribution Date
by any member of the Viasys Group, regardless of whether such businesses
and operations were conducted prior to the Distribution Date by such
member of the Viasys Group or by a predecessor, including Thermo Electron.
"Viasys Common Stock" has the meaning ascribed to it in the
Recitals.
"Viasys Exchange Ratio" means a fraction, (a) the numerator of which
is the closing sale price per share of Thermo Electron Common Stock
(trading "regular way") on The New York Stock Exchange at the close of
regular trading hours on the Distribution Date and (b) the denominator of
which is the opening sale price per share of Viasys Common Stock on the
New York Stock Exchange at the commencement of regular trading hours on
the date that is the next business day after the Distribution Date.
"Viasys Group" means Viasys and the Viasys Subsidiaries.
"Viasys Indemnitees" means Viasys, each Affiliate of Viasys and
each of their respective Representatives and each of the heirs, executors,
successors and assigns of any of the foregoing.
"Viasys Subsidiaries" means all Subsidiaries of Viasys.
ARTICLE II
ACKNOWLEDGMENT OF MATERIAL FACTS
2.1 ORGANIZATION. Thermo Electron and Viasys acknowledge that each is duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with requisite corporate power to own their respective properties and
assets and to carry on their respective businesses as presently conducted or
contemplated. Thermo Electron is the owner of all of the issued and outstanding
shares of Viasys Common Stock.
ARTICLE III
PRELIMINARY ACTION
3.1 COOPERATION PRIOR TO THE DISTRIBUTION.
(a) Ancillary Agreements. Thermo Electron and Viasys shall use their
respective reasonable efforts to cause, simultaneously with the execution and
delivery of this Agreement, the execution and delivery by Thermo Electron and
Viasys, or their respective
Affiliates, of the Ancillary Agreements and any other agreements, instruments or
other documents deemed necessary or desirable by the applicable parties to
establish and govern their post-Distribution relationships.
(b) Form 10. Thermo Electron and Viasys have prepared, and Viasys has
filed with the Commission, the Form 10, which includes the Information
Statement, setting forth appropriate disclosure concerning Viasys, the
Distribution and any other appropriate matters required to be stated therein.
Thermo Electron and Viasys shall use their respective reasonable efforts to
cause the Form 10 to become effective under the Exchange Act as promptly as
reasonably practicable, and thereafter Thermo Electron or its agent shall
promptly mail the Information Statement to all of the appropriate holders of
Thermo Electron Common Stock.
(c) Listing. Thermo Electron and Viasys shall prepare, and Viasys
shall file and pursue, an application to effect the listing of the Viasys Common
Stock on the New York Stock Exchange.
(d) Blue Sky. Thermo Electron and Viasys shall use reasonable efforts
to take all such actions as may be necessary or appropriate under state
securities and blue sky laws in connection with the transactions contemplated by
this Agreement.
3.2 CONSENTS. Each party hereto understands and agrees that no party
hereto is, in this Agreement or in any other agreement or document contemplated
by this Agreement or otherwise, representing or warranting in any way that the
obtaining of any consents or approvals, the execution and delivery of any
agreements or the making of any filings or applications contemplated by this
Agreement will satisfy the provisions of any or all applicable agreements or the
requirements of any or all applicable laws or judgments except as expressly
represented, warranted or covenanted herein or in the Ancillary Agreements.
Notwithstanding the foregoing, the parties shall use reasonable efforts to
obtain all consents and approvals, to enter into all agreements and to make all
filings and applications which may be required for the consummation of the
transactions contemplated by this Agreement, including, without limitation, all
applicable regulatory filings or consents under federal or state laws and all
necessary consents, approvals, agreements, filings and applications.
ARTICLE IV
THE DISTRIBUTION
4.1 THE DISTRIBUTION.
(a) Prior to the Distribution Date Thermo Electron shall deliver to
Viasys the certificates representing all of the outstanding shares of Viasys
Common Stock owned by Thermo Electron as of 4:00 p.m., Boston Time on the
Distribution Date (the "Distribution Shares"), and Viasys shall cancel such
certificates. In exchange therefor, and upon receipt from the Agent of a
certificate as to the number of shares of Thermo Electron Common Stock
outstanding as of the Distribution Record Date, Viasys shall deliver to the
Agent on the Distribution Date on behalf of Thermo Electron and for the benefit
of the holders of record of Thermo Electron Common Stock as of the Distribution
Record Date, an omnibus stock certificate representing the Distribution Shares.
Effective as of 4:00 p.m., Boston Time, on the date of the delivery of such
omnibus stock certificate to the Agent, ownership of the Viasys
Common Stock held by Thermo Electron shall pass to Thermo Electron's
stockholders. Thermo Electron shall instruct the Agent to distribute, beginning
on or promptly following the Distribution Date, to such holders of Thermo
Electron Common Stock on the Distribution Record Date, certificates representing
the Distributed Viasys per Share amount for every share of Thermo Electron
Common Stock outstanding as of the Distribution Record Date. Viasys agrees to
provide to the Agent sufficient certificates in such denominations as the Agent
may request in order to effect the Distribution. All of the Distribution Shares
shall be fully paid, nonassessable and free of preemptive rights. Holders of
Thermo Electron Common Stock shall not be required to pay cash or other
consideration for the Distribution Shares.
(b) No fractional shares of Viasys Common Stock will be received by
Thermo Electron stockholders. Instead, each Thermo Electron stockholder that
would otherwise be entitled to a fractional share of Viasys Common Stock shall
be entitled to receive a cash payment in lieu thereof, which payment shall
represent such stockholder's proportionate interest in the net proceeds from the
sale by the Agent on behalf of all such Thermo Electron stockholders of the
aggregate fractional shares of Viasys Common Stock that such stockholders would
otherwise be entitled to receive. Any such sale shall be made by the Agent
within five business days after the Distribution Date.
4.2 THERMO ELECTRON BOARD ACTION.
(a) The Thermo Electron Board shall establish in its sole discretion
and in accordance with all applicable rules of the New York Stock Exchange, the
Distribution Record Date, the Distribution Date and all appropriate procedures
in connection with the Distribution.
(b) After the declaration of the Distribution and until the
Distribution Date, in its sole discretion for any reason, the Thermo Electron
Board may rescind the declaration of the Distribution and postpone, withdraw,
cancel or abandon the Distribution for any reason and simultaneously terminate
this Agreement and the Ancillary Agreements. In the event of such termination,
no party hereto or to any Ancillary Agreement shall have any Liability to any
Person by reason of this Agreement or any Ancillary Agreement.
ARTICLE V
SURVIVAL, ASSUMPTION AND INDEMNIFICATION
5.1 SURVIVAL OF AGREEMENTS. All covenants and agreements of the parties
hereto contained in this Agreement shall survive the Distribution Date.
5.2 ASSUMPTION AND INDEMNIFICATION.
(a) Except as specifically otherwise provided in the Ancillary
Agreements, Thermo Electron shall indemnify, defend and hold harmless the Viasys
Indemnitees from and
against (1) all Indemnifiable Losses arising from or relating to the Thermo
Electron Business, whether such Indemnifiable Losses relate to events,
occurrences or circumstances occurring or existing, or whether such
Indemnifiable Losses are asserted, before or after the Distribution Date; (2)
all Indemnifiable Losses incurred by Viasys as a consequence of any misstatement
or omission of a material fact with respect to Thermo Electron based on
information supplied by Thermo Electron in any documents or filings prepared for
purposes of compliance or qualification under applicable securities laws in
connection with the Distribution, and related transactions, including without
limitation, the Information Statement and the Form 10; and (3) all Indemnifiable
Losses arising from any breach of or failure to perform any obligation on the
part of any member of Thermo Electron Group contained in this Agreement or any
of the Ancillary Agreements.
(b) Except as specifically otherwise provided in the Ancillary
Agreements, Viasys shall indemnify, defend and hold harmless the Thermo Electron
Indemnitees from and against (1) all Indemnifiable Losses arising from or
relating to the Viasys Business, whether such Indemnifiable Losses relate to
events, occurrences or circumstances occurring or existing, or whether such
Indemnifiable Losses are asserted, before or after the Distribution Date; (2)
all Indemnifiable Losses incurred by Thermo Electron as a consequence of any
misstatement or omission of a material fact with respect to Viasys based on
information supplied by Viasys in any documents or filings prepared for purposes
of compliance or qualification under applicable securities laws in connection
with the Distribution and related transactions, including without limitation,
the Information Statement and the Form 10; (3) all Indemnifiable Losses arising
from any breach of or failure to perform any obligation on the part of any
member of the Viasys Group contained in this Agreement or any of the Ancillary
Agreements; and (4) all Indemnifiable Losses arising from or relating to any
obligations of any member of the Thermo Electron Group or its Representatives
under any TMO Letter of Credit Guarantees.
(c) If any Indemnifiable Loss arises from or relates to both the
Thermo Electron Business and the Viasys Business, Thermo Electron shall
indemnify the Viasys Indemnitees against any portion of such Indemnifiable Loss
that pertains more directly to the Thermo Electron Business than to the Viasys
Business, and Viasys shall indemnify the Thermo Electron Indemnitees against any
portion of such Indemnifiable Loss that pertains more directly to the Viasys
Business than to the Thermo Electron Business.
(d) Notwithstanding anything to the contrary set forth herein,
indemnification relating to any arrangements between any member of the Thermo
Electron Group and any member of the Viasys Group (or any unit of the Viasys
Business) for the provision after the Distribution of goods and services shall
be governed by the terms of such arrangements and not by this Section.
5.3 PROCEDURES FOR INDEMNIFICATION FOR THIRD-PARTY CLAIMS.
(a) Viasys shall, and shall cause the other Viasys Indemnitees to,
notify Thermo Electron in writing promptly after learning of any Third-Party
Claim for which any Viasys Indemnitee intends to seek indemnification from
Thermo Electron under this Agreement. Thermo Electron shall, and shall cause the
other Thermo Electron Indemnitees to, notify Viasys
in writing promptly after learning of any Third-Party Claim for which any Thermo
Electron Indemnitee intends to seek indemnification from Viasys under this
Agreement. The failure of any Indemnitee to give such notice shall not relieve
any Indemnifying Party of its obligations under this Article V except to the
extent that such Indemnifying Party or its Affiliate is actually prejudiced by
such failure to give notice. Such notice shall describe such Third-Party Claim
in reasonable detail considering the information provided to the Indemnitee.
(b) Except as otherwise provided in subsection (c) of this Section
5.3, an Indemnifying Party may, by notice to the Indemnitee and to Viasys, if
Thermo Electron is the Indemnifying Party, or to Thermo Electron, if Viasys is
the Indemnifying Party, at any time after receipt by such Indemnifying Party of
such Indemnitee's notice of a Third-Party Claim, undertake (itself or through
another member of its Group) the defense or settlement of such Third-Party
Claim. If an Indemnifying Party undertakes the defense of any Third-Party Claim,
such Indemnifying Party shall thereby admit its obligation to indemnify the
Indemnitee against such Third-Party Claim, and such Indemnifying Party shall
control the investigation and defense or settlement thereof, except that such
Indemnifying Party shall not require any Indemnitee, without its prior written
consent, to take or refrain from taking any action in connection with such
Third-Party Claim, or make any public statement, which such Indemnitee
reasonably considers to be against its interest, nor shall the Indemnifying
Party, without the prior written consent of the Indemnitee and of Viasys, if the
Indemnitee is a Viasys Indemnitee, or of Thermo Electron, if the Indemnitee is a
Thermo Electron Indemnitee, consent to any settlement that does not include as a
part thereof an unconditional release of the Indemnitees from liability with
respect to such Third-Party Claim or that requires the Indemnitee or any of its
Representatives or Affiliates to make any payment that is not fully indemnified
under this Agreement or to submit to any non-monetary remedy; and subject to the
Indemnifying Party's control rights, as specified herein, the Indemnitees may
participate in such investigation and defense, at their own expense.
(c) With respect to any Third-Party Claim, if there is a material
conflict of interest between the Indemnifying Party and the Indemnitees
involved, neither the Indemnifying Party nor the Indemnitees shall be entitled
to control the defense or settlement thereof. If an Indemnitee notifies an
Indemnifying Party of a Third-Party Claim pursuant to this Section 5.3, and the
Indemnifying Party does not take control of the defense or settlement thereof,
or prior to the time that it does so take control, neither the Indemnifying
Party nor the Indemnitees shall be entitled to control the defense or settlement
thereof. In any such event, the Indemnifying Parties and the Indemnitees
involved shall each be entitled to conduct their own investigation and defense,
but the parties shall cooperate to conduct such investigation and defense as
efficiently as possible. No Indemnitee may compromise or settle any Third-Party
Claim described in this subsection as to which indemnification from an
Indemnifying Party has or will be sought under this Agreement without the prior
written consent of such Indemnifying Party.
(d) If an Indemnifying Party is required to indemnify any Indemnitees
with respect to a Third-Party Claim described in subsection (c) of this Section
5.3, such Indemnifying Party shall pay the reasonable attorneys' fees and
expenses of one law firm representing the Indemnitees involved in each
jurisdiction with respect thereto.
(e) Viasys shall, and shall cause the other Viasys Indemnitees to, and
Thermo Electron shall, and shall cause the other Thermo Electron Indemnitees to,
make available to each
other, their counsel and other Representatives, all information and documents
reasonably available to them which relate to any Third-Party Claim, and
otherwise cooperate as may reasonably be required in connection with the
investigation, defense and settlement thereof.
5.4 REMEDIES CUMULATIVE. The remedies provided in this Article V shall be
cumulative and shall not preclude assertion by any Indemnitee of any other
rights or the seeking of any other remedies against any Indemnifying Party.
However, the procedures set forth in Section 5.3 shall be the exclusive
procedures governing any indemnity action brought under this Agreement or
otherwise and relating to a Third-Party Claim, except as otherwise specifically
provided in any of the Ancillary Agreements.
5.5 RELEASE OF PRE-DISTRIBUTION CLAIMS.
(a) Except as provided in Section 5.5(c), effective as of the
Distribution Date, Viasys does hereby, for itself and each other member of the
Viasys Group, and their respective Affiliates, successors and assigns, remise,
release and forever discharge Thermo Electron, the members of the Thermo
Electron Group, their respective Affiliates, successors and assigns, and their
respective heirs, executors, administrators, successors and assigns, from any
and all Liabilities whatsoever, whether at law or in equity (including any right
of contribution), whether arising under any contract or agreement, by operation
of law or otherwise, existing or arising from any acts or events occurring or
failing to occur or alleged to have occurred or to have failed to occur or any
conditions existing or alleged to have existed on or before the Distribution
Date, including in connection with the actions or decisions taken or omitted to
be taken in connection with, and the other activities relating to, the
structuring or implementation of the Distribution and the transfer of the Viasys
Assets to the Viasys Group and the assumption by the Viasys Group of the Viasys
Liabilities.
(b) Except as provided in Section 5.5(c), effective as of the
Distribution Date, Thermo Electron does hereby, for itself and each other member
of the Thermo Electron Group, their respective Affiliates, successors and
assigns, remise, release and forever discharge Viasys, the respective members of
the Viasys Group, their respective Affiliates, successors and assigns, and their
respective heirs, executors, administrators, successors and assigns, from any
and all Liabilities whatsoever, whether at law or in equity (including any right
of contribution), whether arising under any contract or agreement, by operation
of law or otherwise, existing or arising from any acts or events occurring or
failing to occur or alleged to have occurred or to have failed to occur or any
conditions existing or alleged to have existed on or before the Distribution
Date, including in connection with the transactions and all other activities to
implement the Distribution and the transfer of the Viasys Assets to the Viasys
Group and the assumption by the Viasys Group of the Viasys Liabilities.
(c) Nothing contained in Section 5.5(a) or (b) shall impair any right
of any Person to enforce this Agreement or the Ancillary Agreements, or any
agreements, arrangements, commitments or understandings that are referred to
herein or therein as not terminating as of the Distribution Date, in each case
in accordance with its terms. Without limiting the foregoing, nothing contained
in Section 5.5(a) or (b) shall release any Person from:
(i) any Liability provided in or resulting from any agreement
among any members of the Thermo Electron Group or the Viasys Group that is
specified in Section 9.4(b) or in Schedule 9.4(b) as not to terminate as of the
Distribution Date;
(ii) any Liability, contingent or otherwise, assumed,
transferred, assigned or allocated to the Group of which such Person is a member
in accordance with, or any other Liability of any member of any Group under,
this Agreement or any Ancillary Agreement;
(iii) any Liability that the parties may have with respect to
indemnification or contribution pursuant to this Agreement or any Ancillary
Agreement, which Liability shall be governed by the provisions of this Article
V, or, if applicable, by the appropriate provisions of the Ancillary Agreements;
or
(iv) any Liability the release of which would result in the
release of any Person other than a Person released pursuant to Section 5.5(a) or
(b).
(d) Viasys shall not make, and shall not permit any member of the
Viasys Group to make, any claim or demand, or commence any Action asserting any
claim or demand, including any claim of contribution or any indemnification,
against Thermo Electron, any member of the Thermo Electron Group, or any other
Person released pursuant to Section 5.5(a), with respect to any Liabilities
released pursuant to Section 5.5(a). Thermo Electron shall not make, and shall
not permit any member of the Thermo Electron Group, to make any claim or demand,
or commence any Action asserting any claim or demand, including any claim of
contribution or any indemnification, against Viasys or any member of the Viasys
Group, or any other Person released pursuant to Section 5.5(b), with respect to
any Liabilities released pursuant to Section 5.5(b).
(e) It is the intent of each of Thermo Electron and Viasys by virtue
of the provisions of this Section 5.5 to provide for a full and complete release
and discharge of all Liabilities existing or arising from all acts and events
occurring or failing to occur or alleged to have occurred or to have failed to
occur and all conditions existing or alleged to have existed on or before the
Distribution Date, between or among Viasys or any member of the Viasys Group, on
the one hand, and Thermo Electron or any member of the Thermo Electron Group, on
the other hand (including any contractual agreements or arrangements existing or
alleged to exist between or among any such members on or before the Distribution
Date), except as expressly set forth in Section 5.5(c). At any time, at the
request and expense of any other party, each party shall cause each member of
its respective Group to execute and deliver releases reflecting the provisions
hereof.
ARTICLE VI
ADDITIONAL ASSURANCES
6.1 MUTUAL ASSURANCES. Thermo Electron and Viasys agree to cooperate with
respect to the implementation of this Agreement and the Ancillary Agreements and
to execute such further documents and instruments as may be necessary to confirm
the transactions contemplated hereby. Such cooperation may include joint
meetings with corporate partners,
suppliers, customers and others to assure the orderly transition of the business
and assets contemplated hereby; provided, however, that nothing herein shall be
deemed to obligate either Thermo Electron or Viasys to take any action or reach
any understandings which may violate any applicable laws. Pursuant to the Tax
Matters Agreement, Thermo Electron and Viasys agree that they will not take any
action inconsistent with the facts and representations set forth in the Private
Letter Ruling Request and the IRS Ruling and will use their reasonable efforts
to cause such facts to remain true and correct and, if either Thermo Electron or
Viasys shall take any such inconsistent action, or fail to use such reasonable
efforts, it will indemnify the other party for any expense or Liability incurred
as a consequence thereof. Thermo Electron and Viasys also agree that the
Distribution is intended to qualify under Section 355 of the Code, and that the
characterization of the transactions contemplated hereunder for tax purposes and
the liability of the parties for taxes shall be governed by the Tax Matters
Agreement. Except as otherwise specifically provided herein or as agreed between
the parties from time to time, Thermo Electron and Viasys shall bear their own
expenses associated with the Distribution.
ARTICLE VII
CONDITIONS TO EFFECTIVENESS OF DISTRIBUTION
The Distribution shall be subject to the implementation of the portions of
this Agreement which are contemplated to become effective prior to the
Distribution and to the satisfaction or waiver of the following conditions:
7.1 BOARD APPROVAL. This Agreement and the Ancillary Agreements (including
exhibits and schedules) shall have been approved by the Thermo Electron Board
and the Viasys Board and shall have been executed and delivered by appropriate
officers of Thermo Electron and Viasys.
7.2 SECURITIES LAWS COMPLIANCE. The transactions contemplated hereby shall
be in compliance with applicable federal and state securities laws.
7.3 FORM 10 EFFECTIVE. The Form 10 shall have become effective under the
Exchange Act, no temporary restraining order or injunction with respect thereto
shall be in effect and no proceeding seeking such relief or seeking to suspend
or otherwise rescind the effectiveness of the Form 10 shall be pending or
threatened.
7.4 CONSENTS. Thermo Electron shall have received such consents, and shall
have received executed copies of such agreements or amendments of agreements, as
it shall deem necessary in connection with the completion of the transactions
contemplated by this Agreement.
7.5 IRS RULING. The facts and representations set forth in the IRS Ruling,
insofar as they relate to the Distribution, shall be true and accurate as of the
Distribution Date.
7.6 OTHER INSTRUMENTS. All action and other documents and instruments
deemed necessary or advisable in connection with the transactions contemplated
hereby shall have been taken or executed, as the case may be, in form and
substance reasonably satisfactory to Thermo Electron and Viasys.
7.7 LEGAL PROCEEDINGS. No legal proceedings affecting or arising out of
the transactions contemplated hereby or which could otherwise affect Thermo
Electron or Viasys in a materially adverse manner shall have been commenced or
threatened against Thermo Electron, Viasys or the directors or officers of
either Thermo Electron or Viasys.
7.8 MATERIAL CHANGES. No material adverse change shall have occurred with
respect to Thermo Electron or Viasys, the securities markets or general economic
or financial conditions which shall, in the reasonable judgment of Thermo
Electron and Viasys, make the transactions contemplated by this Agreement
inadvisable.
7.9 NOTICE OF RECORD DATE. Thermo Electron shall have provided (a) The New
York Stock Exchange with the prior written notice of the Distribution Record
Date as provided by Rule 10b-17 of the Exchange Act and the rules and
regulations of The New York Stock Exchange, (b) any and all notices required in
connection with the Distribution under the Thermo Electron (i) 4-1/4%
Convertible Subordinated Debentures due 2003, (ii) 4-1/2% Senior Convertible
Debentures due 2003 (formerly Thermo Instrument Systems Inc.), (iii) 4%
Convertible Subordinated Debentures due 2005 (formerly Thermo Instrument Systems
Inc.), (iv) 0% Convertible Subordinated Debentures due 2003 (formerly Thermedics
Inc.), (v) 2-7/8% Convertible Subordinated Debentures due 2003 (formerly
Thermedics Inc.), (vi) 4-7/8% Convertible Subordinated Debentures due 2004
(formerly Thermo Ecotek Corporation), (vii) 4-5/8% Convertible Subordinated
Debentures due 2003 (formerly Thermo TerraTech Corporation), and (viii) 3-1/4%
Convertible Subordinated Debentures due 2007 (formerly ThermoTrex Corporation),
and (c) any and all notices required under the ThermoLase LLC 4-3/8% Convertible
Subordinated Debentures due 2004.
7.10 OPINION OF XXXXXXXX XXXXX. Xxxxxxxx Xxxxx shall have provided to the
Board of Directors of Thermo Electron its written opinion as to the solvency of
Thermo Electron and related matters immediately prior to and after giving effect
to the Distribution and the distribution of shares of common stock of Kadant
Inc. by Thermo Electron to the stockholders of Thermo Electron.
7.11 SATISFACTION OR WAIVER OF CONDITIONS. Any determination made by the
Board of Directors of Thermo Electron on behalf of either party hereto prior to
the Distribution Date concerning the satisfaction or waiver of any or all of the
conditions set forth in this Article VII shall be conclusive.
ARTICLE VIII
ACCESS TO INFORMATION AND SERVICES
8.1 PROVISION OF CORPORATE RECORDS. Prior to or as promptly as practicable
after the Distribution Date, Thermo Electron shall deliver to Viasys all
existing corporate records in the possession of Thermo Electron relating to
Viasys, together with all active agreements and any active litigation files
relating to the Viasys Business, except (a) to the extent such items are already
in the possession of Viasys and (b) for such records as are necessary for the
performance by the Thermo Electron Group of services under the Transition
Services Agreement (in which case such records shall be delivered to Viasys as
soon as practicable after termination or
expiration of the Transition Services Agreement). Such records shall be the
property of Viasys but shall be available to Thermo Electron for review and
duplication until Thermo Electron shall notify Viasys in writing that such
records are no longer of use to Thermo Electron.
8.2 ACCESS TO INFORMATION. From and after the Distribution Date, Thermo
Electron shall, and shall cause each of the other members of the Thermo Electron
Group to, afford to the members of the Viasys Group and their authorized
accountants, counsel and other designated representatives reasonable access
(including using reasonable efforts to give access to persons or firms
possessing information) and duplicating rights during normal business hours to
all records, books, contracts, instruments, computer data and other data and
information (collectively, "Information") within the Thermo Electron Group's
possession relating to the business of the Viasys Group, insofar as such access
is reasonably required by any member of the Viasys Group. Viasys shall, and
shall cause each of the other members of the Viasys Group to, afford to the
members of the Thermo Electron Group and their authorized accountants, counsel
and other designated representatives reasonable access (including using
reasonable efforts to give access to persons or firms possessing Information)
and duplicating rights during normal business hours to Information within the
Viasys Group's possession relating to the business of the Thermo Electron Group
as constituted after the Distribution, insofar as such access is reasonably
required by any member of the Thermo Electron Group. Information may be
requested under this Article VIII for, without limitation, audit, accounting,
claims, litigation and tax purposes, as well as for purposes of fulfilling
disclosure and reporting obligations and for performing the transactions
contemplated in this Agreement and the Ancillary Agreements.
8.3 PRODUCTION OF WITNESSES. At all times from and after the Distribution
Date, each of Thermo Electron and Viasys shall, and shall cause the other
members of its respective Group to, use reasonable efforts to make available to
the members of the other Group, upon written request, its officers, directors,
employees and agents as witnesses to the extent that such persons may reasonably
be required in connection with legal, administrative or other proceedings in
which the requesting party may from time to time be involved and relating to the
pre-Distribution business of the Thermo Electron Group or the Viasys Group or
relating to or in connection with the relationship between any member of the
Thermo Electron Group and any member of the Viasys Group on or prior to the
Distribution Date.
8.4 REIMBURSEMENT. Except to the extent otherwise contemplated by any
Ancillary Agreement, a party providing Information to the other party under this
Article VIII shall be entitled to receive from the recipient, upon the
presentation of invoices therefor, payments for such amounts, relating to
supplies, disbursements and other out-of-pocket expenses, as may be reasonably
incurred in providing such Information.
8.5 RETENTION OF RECORDS. For a period of seven (7) years following the
Distribution Date, each of Thermo Electron and Viasys shall retain all
Information relating to the other, except as otherwise required by law or set
forth in an Ancillary Agreement or except to the extent that such Information is
in the public domain or in the possession of the other party; provided, that,
after the expiration of such retention period, such Information shall not be
destroyed or otherwise disposed of at any time, unless, prior to such
destruction or disposal, (i) the party proposing to destroy or otherwise dispose
of such Information shall provide no less than 90 days' prior written notice to
the other, specifying in reasonable detail the Information
proposed to be destroyed or disposed of and (ii) if a recipient of such notice
shall request in writing prior to the scheduled date for such destruction or
disposal that any of the Information proposed to be destroyed or disposed of be
delivered to such requesting party, the party proposing the destruction or
disposal shall promptly arrange for the delivery of such of the Information as
was requested, at the expense of the party requesting such Information.
8.6 CONFIDENTIALITY. Subject to any contrary requirement of law and the
right of each party to enforce its rights hereunder in any legal action, each
party shall keep strictly confidential, and shall use its reasonable efforts to
cause its Affiliates and Representatives to keep strictly confidential, any
Information of or concerning the other party which it or any of its Affiliates
or Representatives may acquire pursuant to, or in the course of performing its
obligations under, any provisions of this Agreement or any Ancillary Agreement;
provided, however, that such obligation to maintain confidentiality shall not
apply to Information which: (i) at the time of disclosure was in the public
domain, not as a result of improper acts by the receiving party; (ii) is
received by the receiving party from a third party who did not receive such
Information from the disclosing party under an obligation of confidentiality; or
(iii) is compelled to be disclosed by judicial or administrative process or, in
the opinion of such Person's counsel, by other requirements of law.
Notwithstanding the foregoing, each of Thermo Electron and Viasys shall be
deemed to have satisfied its obligations under this Section 8.6 with respect to
any Information if it exercises the same care with regard to such Information as
it takes to preserve the confidentiality of its own similar Information.
ARTICLE IX
COVENANTS
9.1 LISTING. For so long as Viasys has a class of securities registered
under Section 12 of the Exchange Act, Viasys hereby agrees to use its reasonable
efforts to effect and maintain the listing of the Viasys Common Stock on The
American Stock Exchange, The Nasdaq National Market or the New York Stock
Exchange.
9.2 ANCILLARY AGREEMENTS. The parties agree that they shall comply with
and provide all services and take any and all actions required to be provided or
taken by the terms of any and all of the Ancillary Agreements following the
Distribution.
9.3 USE OF THERMO ELECTRON TRADEMARKS.
(a) Thermo Electron hereby grants the Viasys Group a nonexclusive,
nontransferable license to use the Thermo Electron Trademarks solely in
connection with the operation of the Viasys Business. Viasys acknowledges, on
its behalf and on behalf of the other members of the Viasys Group that Thermo
Electron owns all rights in the Thermo Electron Trademarks. From and after the
Distribution Date, the Viasys Group shall have no rights to the Thermo Electron
Trademarks except for the limited license granted pursuant to this Section 9.3.
(b) Within 180 days following the Distribution Date, Viasys and each
member of the Viasys Group shall cease all use of the Thermo Electron Trademarks
as part of any corporate name or logo, tradename, and/or trademark or service
xxxx, including, without
limitation, on any signs, letterhead, business cards, invoices and other
business forms, telephone directory listings and promotional materials.
(c) During the 180-day period set forth in Section 9.3(b), Viasys
shall maintain the same standards of quality for products and services provided
under the Thermo Electron Trademarks as previously provided by Thermo Electron
and its Subsidiaries. During such period, Thermo Electron shall have the right
to monitor Viasys's use of the Thermo Electron Trademarks and shall be able to
control the quality of any Viasys products and/or services that bear the Thermo
Electron Trademarks.
9.4 TERMINATION OF INTERCOMPANY AGREEMENTS.
(a) Viasys and each member of the Viasys Group, on the one hand, and
Thermo Electron and each member of the Thermo Electron Group, on the other hand,
hereby terminate any and all agreements, arrangements, commitments or
understandings, whether or not in writing, between or among Viasys and/or any
member of the Viasys Group, on the one hand, and Thermo Electron and/or any
member of the Thermo Electron Group, on the other hand, effective as of the
Distribution Date. No such terminated agreement, arrangement, commitment or
understanding (including any provision thereof which purports to survive
termination) shall be of any further force or effect after the Distribution
Date. Each Party shall, at the reasonable request of any other party, take, or
cause to be taken, such other actions as may be necessary to effect the
foregoing.
(b) The provisions of Section 9.4(a) shall not apply to any of the
following agreements, arrangements, commitments or understandings (or to any of
the provisions thereof): (i) this Agreement or any of the Ancillary Agreements
(and each other agreement or instrument expressly contemplated by this Agreement
or any Ancillary Agreement to be entered into by any of the parties hereto or
any of the members of their respective Groups); (ii) any agreements,
arrangements, commitments or understandings listed or described on Schedule
9.4(b) hereto; (iii) any agreements, arrangements, commitments or understandings
to which any Person other than the parties hereto and their respective
Affiliates is a party; (iv) any other agreements, arrangements, commitments or
understandings that this Agreement or any of the Ancillary Agreements expressly
contemplates will survive the Distribution Date.
9.5 NAME CHANGES. Viasys hereby agrees to cause each of its Subsidiaries,
including but not limited to Thermo Polymer LLC, to cease using the term
"Thermo" or "TMO" in its name by no later than December 31, 2001.
9.6 TREATMENT OF STOCK OPTIONS. All outstanding options to purchase shares
of Thermo Electron Common Stock (Current "TMO Options") held immediately prior
to the Distribution Date by Active Employees of the Viasys Group shall be
assumed by Viasys and shall be adjusted as follows: (i) each such Current TMO
Option shall be exercisable, on the same terms and conditions as were applicable
under such Current TMO Option (including those relating to vesting and
expiration of such Current TMO Option) on the Distribution Date, under the
Viasys Equity Incentive Plan to purchase such number of shares of Viasys Common
Stock as is equal to the
number of shares of Thermo Electron Common Stock covered by such Current TMO
Option immediately prior to the Distribution Date multiplied by the Viasys
Exchange Ratio (rounded down to the nearest whole share), and (ii) the exercise
price per share under such Current TMO Option shall equal the exercise price per
share of Thermo Electron Common Stock purchasable pursuant to such Current TMO
Option immediately prior to the Distribution Date divided by the Viasys Exchange
Ratio, with such quotient then rounded down to the nearest whole cent. As soon
as practicable after the Distribution Date, Viasys shall deliver to each Active
Employee of the Viasys Group appropriate notice setting forth the adjustments
made to his or her Current TMO Options pursuant to this Section 9.6. Each of
Thermo Electron and Viasys agrees to take all corporate action necessary to
effectuate and carry out the intent and purposes of this Section 9.6.
Immediately following the Distribution Date, the Viasys Board shall have all of
the obligations, authority, rights and powers with respect to the Current TMO
Options as had the Thermo Electron Board immediately prior to the Distribution
Date.
9.7 TREATMENT OF RESTRICTED STOCK. Pursuant to arrangements agreed upon
among Thermo Electron, Viasys and the Active Employees of the Viasys Group who
hold restricted shares of Thermo Electron Common Stock, effective as of the
Distribution Date all such restricted shares immediately prior to the
Distribution Date by such Active Employees shall be exchanged for a number of
restricted shares of Viasys Common Stock equal to the number of such restricted
shares of Thermo Electron Common Stock being exchanged multiplied by the Viasys
Exchange Ratio. The restricted shares of Viasys Common Stock so issued shall be
subject to terms and conditions equivalent to those applicable to the restricted
shares of Thermo Electron Common Stock, as effective immediately prior to the
Distribution Date.
9.8 OBLIGATIONS UNDER LETTERS OF CREDIT. On or before six months from the
Distribution Date (the "Release Date"), Viasys shall have arranged for the
termination of, or replacement arrangements (including, to the extent required,
guarantees and letters of credit from Viasys's lender) reasonably satisfactory
to Thermo Electron with respect to, all TMO Letter of Credit Guarantees
continuing in effect on and after the Release Date. Such terminations and/or
replacement arrangements shall include or have the effect of providing a full
and complete release of Thermo Electron, all other members of the Thermo
Electron Group and the Representatives of the Thermo Electron Group (other than
the members of the Viasys Group) of all of the obligations of the Thermo
Electron Group and its Representatives under, or in connection with, the TMO
Letter of Credit Guarantees.
9.9 STOCKHOLDER APPROVAL OF PLANS. After the Distribution Date, Viasys
shall call a meeting of its stockholders for the purpose of ratifying the
adoption of the Viasys Equity Incentive Plan and the Viasys Employee Stock
Purchase Plan by the Viasys Board of Directors. Such stockholder meeting shall
occur no later than September 23, 2002 in the case of the Viasys Equity
Incentive Plan and October 17, 2002 in the case of the Viasys Employee Stock
Purchase Plan.
9.10 COMMUNICATIONS WITH IRS. Viasys hereby agrees that it shall not
engage in any communications with the Internal Revenue Service regarding the
Distribution or the tax-free treatment of the Distribution without the prior
written approval of Thermo Electron.
9.11 CAPITAL CONTRIBUTION TO VIASYS. On or about the Distribution Date,
Thermo Electron shall provide Viasys with sufficient cash, which when added to
the existing cash and cash equivalents of Viasys on the Distribution Date, will
result in Viasys having a "net debt" balance of $18.7 million.
For purposes of this calculation, "net debt" is defined as Viasys' outstanding
indebtedness to Thermo Electron as of the Distribution Date less Viasys' cash
and cash equivalents as of such date. In the event that such capital
contribution by Thermo Electron results in Viasys having a "net debt" balance of
less than $18.7 million, Viasys shall remit to Thermo Electron an amount such
that the net debt of Viasys would equal $18.7 million.
ARTICLE X
NO REPRESENTATIONS OR WARRANTIES
10.1 NO REPRESENTATIONS OR WARRANTIES. Viasys acknowledges that, prior to
the date of this Agreement, it has had primary responsibility for the operation
and management of the Viasys Business, and Thermo Electron acknowledges that,
prior to the date of this Agreement, it has had primary responsibility for the
operation and management of the Thermo Electron Business. Viasys understands and
agrees that no member of the Thermo Electron Group is, in this Agreement or in
any other agreement or document, representing or warranting to Viasys or any
member of the Viasys Group in any way as to the Viasys Assets, the Viasys
Business or the Liabilities of the Viasys Group or as to any consents or
approvals required in connection with the consummation of the transactions
contemplated by this Agreement, it being agreed and understood that Viasys and
each member of the Viasys Group shall take all of the Viasys Assets "as is,
where is." Viasys and each member of the Viasys Group shall bear the economic
and legal risk that conveyances of the Viasys Assets shall prove to be
insufficient, that the title of any member of the Viasys Group to any Viasys
Assets shall be other than good and marketable and free from encumbrances or
that results from the failure of Viasys or any member of the Viasys Group to
obtain any consents or approvals relating to the Viasys Business required in
connection with the consummation of the transactions contemplated by this
Agreement.
ARTICLE XI
MISCELLANEOUS
11.1 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Delaware.
11.2 CONSTRUCTION. Each provision of this Agreement shall be interpreted
in a manner to be effective and valid to the fullest extent permissible under
applicable law. The invalidity or unenforceability of any particular provision
of this Agreement shall not affect the other provisions of this Agreement which
shall remain in full force and effect.
11.3 COUNTERPARTS. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement.
11.4 EXHIBITS. Exhibits to this Agreement shall be deemed to be an
integral part hereof, and schedules or exhibits to such Exhibits shall be deemed
to be an integral part thereof. Except as otherwise specifically provided
therein, all provisions of this Article XI shall apply to each agreement
constituting an Ancillary Agreement or to which reference is made herein.
11.5 AMENDMENTS; WAIVERS. This Agreement may be amended or modified only
in writing executed on behalf of Thermo Electron and Viasys. No waiver shall
operate to waive any further or future act and no failure to object or
forbearance shall operate as a waiver.
11.6 NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given (i) on the date of service if served personally on the party to whom
notice is given, (ii) on the day of transmission if sent via facsimile
transmission to the facsimile number given below, provided telephonic
confirmation of receipt is obtained promptly after completion of transmission,
(iii) on the business day after delivery to an overnight courier service or the
Express mail service maintained by the United States Postal Service, provided
receipt of delivery has been confirmed, or (iv) on the fifth day after mailing,
if mailed by registered or certified mail, postage prepaid, properly addressed
and return-receipt requested, in all cases to the parties as follows:
Thermo Electron Corporation
00 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or to:
Viasys Healthcare Inc.
000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier:
11.7 SUCCESSORS AND ASSIGNS. This Agreement and any of the rights and
obligations of each party hereunder shall not be assigned, in whole or in part,
without the prior written consent of the other party, provided that either party
may sell, assign, transfer, delegate or otherwise dispose of its rights and
obligations hereunder in connection with its merger or consolidation or the sale
of substantially all of its assets. This Agreement shall be binding upon the
parties and their respective successors and assigns to the extent such
assignments are in accordance with this Section 11.7.
11.8 INTERPRETATION. The Article and Section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement. As used in this Agreement, the term "person" shall mean and
include an individual, a partnership, a joint venture, a corporation, a trust,
an unincorporated organization and a government or any department or agency
thereof. Whenever any words are used herein in the masculine gender, they shall
be construed as though they were also used in the feminine gender in all cases
where they would so apply.
11.9 NO THIRD-PARTY BENEFICIARIES. Except for the provisions of Sections
5.2 and 5.3 relating to Indemnitees, which are also for the benefit of the
Indemnitees, this Agreement is
solely for the benefit of the parties hereto and their Subsidiaries and
Affiliates and is not intended to confer upon any other Persons any rights or
remedies hereunder.
11.10 COMPLETE AGREEMENT. This Agreement, the Exhibits and any schedules
hereto and the Ancillary Agreements and other documents referred to herein shall
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and shall supersede all previous negotiations, commitments
and writings with respect to such subject matter. All matters arising out of the
Distribution relating to taxes shall be governed by the Tax Matters Agreement.
In the event of any inconsistency between the Tax Matters Agreement and this
Agreement with respect to such matters, the Tax Matters Agreement shall govern.
11.11 DISPUTE RESOLUTION.
(a) General. In the event that any dispute should arise between the
parties hereto with respect to any matter covered by this Agreement or any of
the Ancillary Agreements or the interpretation of this Agreement or any of the
Ancillary Agreements, the parties hereto shall resolve such dispute in
accordance with the procedures set forth in this Section 11.11.
(b) Arbitration.
(i) Any party hereto may submit any matter referred to in Section
11.11(a) to arbitration by notifying the other party, in writing, of such
dispute. Within 30 days after receipt of such notice, the parties shall
designate in writing one arbitrator to resolve the dispute; provided, that if
the parties cannot agree on an arbitrator within such 30-day period, the
arbitrator shall be selected by the Boston, Massachusetts, Office of the
American Arbitration Association. The arbitrator shall be a retired federal or
state judge, and shall not be an Affiliate, Representative, employee,
consultant, officer, director or stockholder of any party hereto. If neither the
parties nor the Boston, Massachusetts, Office of the American Arbitration
Association is able to identify an individual to serve as the arbitrator, the
Boston, Massachusetts, Office of the American Arbitration Association shall
select an arbitrator from the CPC Panel of Distinguished Neutrals of the CPR
Institute for Dispute Resolution.
(ii) Within 30 days after the designation of the arbitrator, the
arbitrator and the parties hereto shall meet, at which time the parties shall be
required to set forth in writing all disputed issues and a proposed ruling on
the merits of each such issue.
(iii) The arbitrator shall set a date for a hearing, which shall
be no later than 45 days after the submission of written proposals pursuant to
Section 11.11(b)(ii), to discuss each of the issues identified by the parties.
Each party hereto shall have the right to be represented by counsel. Except as
provided herein, the arbitration shall be governed by the Commercial Arbitration
Rules of the American Arbitration Association; provided, however, that the
Federal Rules of Evidence shall apply with regard to the admissibility of
evidence and the arbitration shall be conducted by a single arbitrator.
(iv) The arbitrator shall use his or her reasonable efforts to
rule on each disputed issue within 30 days after the completion of the hearings
described in Section 11.11(b)(iii). The determination of the arbitrator as to
the resolution of any dispute shall be
binding and conclusive upon all parties hereto. All rulings of the arbitrator
shall be in writing and shall be delivered to the parties.
(v) The attorneys' fees of the parties hereto in any arbitration,
the fees of the arbitrator, and the costs and expenses of the arbitration shall
be borne by the parties as determined by the arbitrator.
(vi) Any arbitration pursuant to this Section 11.11 shall be
conducted in Boston, Massachusetts. Any arbitration award may be entered in and
enforced by any court having jurisdiction thereover and shall be final and
binding upon the parties hereto.
(vii) Notwithstanding the foregoing, nothing in this Section
11.11 shall be construed as limiting in any way the right of a party hereto to
seek a temporary restraining order or other injunctive relief with respect to
any actual or threatened breach of this Agreement or any Ancillary Agreement
from a court of competent jurisdiction. Should any party to this Agreement seek
a temporary restraining order or other injunctive relief, then for purposes of
determining whether to grant such temporary restraining order or other
injunctive relief, the dispute underlying the request for such temporary
restraining order or other injunctive relief may be heard by such court of
competent jurisdiction.
11.12 EXPENSES. Except as otherwise specifically provided in this
Agreement and the Ancillary Agreements, Thermo Electron and Viasys shall each
bear their own costs and expenses incurred in connection with the transactions
contemplated hereby and by the Ancillary Agreements (including the fees and
expenses of the Agent and of all counsel, accountants and financial and other
advisors).
11.13 FORCE MAJEURE. Neither party shall be considered in default in
performance of its obligations under this Agreement to the extent that its
performance of such obligations is prevented or delayed by any cause beyond its
reasonable control, including but not limited to strikes, labor disputes, civil
disturbances, rebellion, invasion, epidemic, hostilities, war, embargo, natural
disaster, acts of God, fire, sabotage, loss and destruction of property, changes
in laws, regulations or orders, other events or situations which the party was
unable to prevent or overcome despite the exercise of due diligence.
Without limiting the foregoing, Thermo Electron and Viasys hereby agree
that: (a) Thermo Electron shall pay all expenses directly relating to the
distribution of its Viasys Common Stock as a dividend to Thermo Electron's
stockholders, including but not limited to expenses of the Agent in connection
with the Distribution, all expenses of any advisors retained by Thermo Electron
to assist Thermo Electron with the placement of the dividend shares and all
legal, travel and other expenses incurred in connection with the preparation and
presentation of the "road show" relating to the Distribution and the
preparation, printing and distribution of the Information Statement: and (b)
Viasys shall pay all expenses relating to the listing and trading of Viasys
Common Stock on any stock exchange, rights plan and other corporate actions
effected in connection with the Distribution, including but not limited to
expenses of any advisors retained by Viasys in connection with coverage of the
Viasys Common Stock.
11.14 COMPLIANCE WITH LAW. Nothing in this Agreement shall require either
party to take any action or omit to take any action in violation of applicable
law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THERMO ELECTRON CORPORATION
By: /s/ Xxxx Xxxxx-Xxxxxxx
--------------------------------------
Xxxx Xxxxx-Xxxxxxx
Vice President and Chief Financial
Officer
VIASYS HEALTHCARE INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx
Chairman of the Board
SCHEDULE 9.4(b)
(1) Operating Lease for Nicolet
(2) Agreement Between Trex Medical and Tecomet
(3) Sub-lease Between Thermo Electron and VIASYS relating to the facility at
000 Xxxxxxxx Xxxxxx in Woburn, Massachusetts
(4) Sub-lease Between Thermo Electron and VIASYS relating to the facility at
000 Xxxxxxxx Xxxxxx in Woburn, Massachusetts
(5) Letter Agreement regarding the premises at Xxxxxxx Xxxxx, Xxxxxxxxx Xxxx,
Xxxxxxx, Xxxxxxx
(6) Recourse Agreements between Thermo Capital and members of the Viasys Group
