1
EXHIBIT 10.1
Draft of 7/18/01
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 3,000 shares of Common Stock,
$.01 par value per share, of Viasys ("Viasys Common Stock"), comprising all of
the issued and outstanding shares of 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.
2
"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 _____________________, 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 and the Transition Services Agreement.
"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.
"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,
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.
2
3
"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.
"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 A, 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
3
4
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.
"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.), 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 B, 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.
4
5
"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 American 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 3,000 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, on or before the Distribution Date, 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 American 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.
5
6
(e) ADJUSTMENT TO VIASYS COMMON STOCK. Thermo Electron and Viasys shall
by means of a reclassification, stock split or stock distribution cause the
number of outstanding shares of Viasys Common Stock immediately prior to the
Distribution to equal ________.
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 but after the adjustment to the
Viasys Common Stock contemplated by Section 3.1(e), Thermo Electron shall
deliver to Viasys the certificates for _________ shares of Viasys Common Stock
owned by Thermo Electron, representing all of the outstanding shares of Viasys
Common Stock, 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 ___ shares of Viasys Common Stock for every ___ shares of Thermo
Electron Common Stock outstanding as of the Distribution Record Date; PROVIDED,
HOWEVER, that in no event shall the omnibus stock certificate represent a
greater number of shares of Viasys Common Stock than the number of such shares
held by Thermo Electron as of the Distribution Date. Effective as of 9:00 a.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 ___ shares of Viasys Common Stock for every ___ shares
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 shares of Viasys Common Stock issued in the Distribution 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
Viasys Common Stock received in the Distribution.
6
7
(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
7
8
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
8
9
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
9
10
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;
10
11
(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
11
12
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
12
13
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 Thermo Trex Corporation),
and (c) any and all notices required under the TermoLase 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 DISTRIBUTION OF VIASYS CASH AND CASH EQUIVALENTS. Viasys shall
have distributed to Thermo Electron all except for $__________ of the cash and
cash equivalents held as of the Distribution Date by each member of the Viasys
Group other than Viasys Subsidiaries that are foreign subsidiaries.
7.12 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
13
14
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 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,
14
15
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 Viasys a nonexclusive,
nontransferable license to use the Thermo Electron Trademarks solely in
connection with the operation of the Viasys Business. Viasys acknowledges that
Thermo Electron owns all rights in the Thermo Electron Trademarks. From and
after the Distribution Date, Viasys shall have no rights to the Thermo Electron
Trademarks except for the limited license granted pursuant to this Section 9.3.
(b) Within ___ 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 ___-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
15
16
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 ________________.
9.6 TREATMENT OF STOCK OPTIONS. No later than 15 days prior to the
Distribution Date, Thermo Electron shall notify each Active Employee of either
Group who holds outstanding options to purchase shares of Thermo Electron Common
Stock ("Current TMO Options") in writing that effective as of the
Distribution Date, all TMO Current 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
16
17
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 ___________(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 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.
17
18
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 of
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.
00 Xxxxx Xxxxxx
X.X. Xxx 0000
18
19
Waltham, MA 02454-9046
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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
19
20
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
20
21
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.
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]
21
22
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
22
