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Exhibit 10.1
PLAN AND AGREEMENT OF DISTRIBUTION
THIS PLAN AND AGREEMENT OF DISTRIBUTION (this "Agreement") is entered
into as of __________, 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.
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"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 5:00
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, 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,
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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
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.
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"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
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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 on or after the Distribution Date by any member of the Viasys
Group, 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
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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
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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,
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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
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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
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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:
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(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,
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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.
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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
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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
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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
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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
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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.
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.
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
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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:
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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.
---------------------
---------------------
---------------------
Telephone:
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.
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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.
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(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.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THERMO ELECTRON CORPORATION
By: ______________________________________
Name:_________________________________
Title:________________________________
VIASYS HEALTHCARE INC.
By: ______________________________________
Xxxxx X. Xxxxxxx
President and Chief Executive Officer
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SCHEDULE 9.4(b)
(1) Operating Lease for Nicolet
(2) Agreement Between Trex Medical and Tecomet
23
