EXHIBIT 2.1
PLAN AND AGREEMENT OF DISTRIBUTION
THIS PLAN AND AGREEMENT OF DISTRIBUTION (the "Agreement") is
made as of the 15th day of December, 1997, between Thermo Optek
Corporation, Inc., a Delaware corporation ("Optek"), and Thermo
Vision Corporation, a Delaware corporation ("Vision").
RECITALS
WHEREAS, Optek is the holder of approximately 6,783,800
shares of Common Stock, $.01 par value per share, of Vision
("Vision Common Stock"), comprising 100% of the issued and
outstanding shares of Vision Common Stock; and
WHEREAS, Optek has contributed certain technology and
certain assets to Vision and intends to make other arrangements
to establish Vision as a separate enterprise for the purpose of
engaging in the photonics business, including the design,
manufacture and sale of optical components, imaging sensors and
systems, lasers, optically based instruments, optoelectronics and
fiber optics; and
WHEREAS, it is the intention of Optek to distribute all of
the issued and outstanding shares of Vision Common Stock held by
Optek to the stockholders of Optek (the "Distribution"); and
WHEREAS, Optek and Vision 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: 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.
Affiliate: 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 Optek(and its
subsidiaries) shall not be deemed to be Affiliates of Vision (and
its subsidiaries), and vice versa, for purposes of this
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Agreement.
Agent: American Stock Transfer & Trust Company, the
distribution agent appointed by Optek to distribute the shares of
Vision Common Stock in connection with the Distribution.
Ancillary Agreements: all of the agreements, instruments,
understandings, assignments or other arrangements entered into in
connection with the transactions contemplated hereby, including,
without limitation, the Thermo Electron Corporate Charter, the
Corporate Services Agreement, the Tax Allocation Agreement, the
Master Guarantee Reimbursement Agreements, the Master Repurchase
Agreement, the CID Supply Agreement and the Tax Matters
Agreement.
CID: Charge-injection device.
CID Supply Agreement: the agreement between Optek and Vision
pursuant to which Vision has agreed to supply Optek with and
Optek has agreed to purchase from Vision, all of Optek's
requirements for CID sensors for use in Optek's optical
spectrometers.
Code: the Internal Revenue Code of 1986, as amended.
Commission: the Securities and Exchange Commission.
Corporate Services Agreement: the agreement between Thermo
Electron and Vision providing for Thermo Electron's provision to
Vision of various administrative services, including certain
legal advice and services, risk management, employee benefit
administration, tax advice and preparation of tax returns,
centralized cash management and certain financial and other
services.
Distribution: as defined in the Recitals.
Distribution Date: the date of effecting the Distribution,
as determined by the Optek Board.
Distribution Record Date: the date determined by the Optek
Board as of which the holders of Optek Common Stock and their
respective stock holdings shall be determined for purposes of
distributing Vision Common Stock to such Optek stockholders.
Exchange Act: the Securities Exchange Act of 1934, as
amended.
Form 10: the Registration Statement on Form 10 to be filed
by Vision with the Commission to effect the registration of the
Vision Common Stock pursuant to the Exchange Act.
Group: the Optek Group or the Vision Group.
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Indemnifiable Losses: 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 (and not actually reimbursed
by insurance proceeds) by an Indemnitee, including any reasonable
costs or expenses of enforcing any indemnity hereunder.
Indemnifying Party: a Person who or which is obligated
under this Agreement to provide indemnification.
Indemnitee: a Person who or which may seek indemnification
under this Agreement.
Information Statement: the Information Statement,
constituting a part of the Form 10, in the form to be distributed
to the holders of Optek Common Stock as of the Distribution
Record Date in connection with the Distribution, and as it may be
amended or supplemented subsequent to such dissemination.
Liabilities: 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), 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.
Master Guarantee Reimbursement Agreements: (i) the agreement
between Thermo Electron and Vision providing that Vision is
required to reimburse Thermo Electron for any costs Thermo
Electron incurs in the event that Thermo Electron is required to
pay third parties pursuant to any guarantees Thermo Electron
issues on Vision's behalf and (ii) the agreement between Thermo
Instrument and Vision providing that Vision is required to
reimburse Thermo Instrument for any costs Thermo Instrument
incurs in the event that Thermo Instrument is required to pay
Thermo Electron or any third party pursuant to any guarantees
Thermo Instrument issues on Vision's behalf.
Master Repurchase Agreement: the agreement between Thermo
Electron and Vision pursuant to which Vision in effect lends cash
to Thermo Electron, whichThermo Electron collateralizes with
investments principally consisting of corporate notes, United
States government-agency securities, money market funds,
commercial paper and other marketable securities, in the amount
of at least 103% of such obligation.
Optek Board: the Board of Directors of Optek.
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Optek Business: all of the businesses and operations
conducted at any time, whether prior to, on or after the
Distribution Date, by any member of the Optek Group, other than
the Vision Business.
Optek Common Stock: the Common Stock, $.01 par value per
share, of Optek.
Optek Group: Optek and the Optek Subsidiaries.
Optek Indemnities: Optek, each Affiliate of Optek and each
of their respective Representatives and each of the heirs,
executors, successors and assigns of any of the foregoing.
Optek Subsidiaries: all Subsidiaries of Optek, other than
Vision and the Vision Subsidiaries.
Person: 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.
Representative: with respect to any Person, any of such
Person's directors, officers, employees, agents, consultants,
advisors, accountants, attorneys and representatives.
Securities Act: the Securities Act of 1933, as amended.
Subsidiary: 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, Vision and the Vision Subsidiaries shall not be deemed
to be Subsidiaries of Optek or any of the Optek Subsidiaries.
Tax Allocation Agreement: the agreement between Thermo
Electron and Vision providing the terms under which Vision will
be included in Thermo Electron's consolidated Federal and state
income tax returns.
Tax Matters Agreement: the Tax Matters Agreement between
Optek and Vision, the proposed form of which is attached as
Exhibit C, 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: Thermo Electron Corporation, a Delaware
corporation and the ultimate parent corporation of Optek and
Vision.
Thermo Electron Corporate Charter: the charter defining the
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relationships, nature of cooperations and benefits and support to
be shared among Thermo Electron and its subsidiaries.
Third-Party Claim: 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.
Vision Assets: all of the assets owned by any member of the
Vision Group immediately prior to the Distribution Date,
excluding items to be retained by any member of the Optek Group
pursuant to the Ancillary Agreements.
Vision Board: the Board of Directors of Vision.
Vision Business: all of the businesses and operations
conducted at any time, whether prior to, on or after the
Distribution Date, by any member of the Vision Group.
Vision Common Stock: as defined in the Recitals.
Vision Group: Vision and the Vision Subsidiaries.
Vision Indemnitees: Vision, each Affiliate of Vision and
each of their respective Representatives and each of the heirs,
executors, successors and assigns of any of the foregoing.
Vision Subsidiary: all Subsidiaries of Vision.
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ARTICLE II
ACKNOWLEDGMENT OF MATERIAL FACTS
2.1 Organization. Optek and Vision 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. Optek is the owner of all (approximately
6,783,800) of the issued and outstanding shares of Vision Common
Stock.
ARTICLE III
PRELIMINARY ACTION
3.1 Cooperation Prior to the Distribution.
(a) Ancillary Agreements. Optek and Vision shall use
their respective best efforts to cause, on or before the
Distribution Date, the execution and delivery by Optek and
Vision, 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. Optek and Vision have prepared, and
Vision has filed with the Commission, the Form 10, which includes
the Information Statement, setting forth appropriate disclosure
concerning Vision, the Distribution and any other appropriate
matters required to be stated therein. Optek and Vision shall
use their respective reasonable efforts to cause the Form 10 to
become effective under the Exchange Act, and thereafter Optek or
its agent shall promptly mail the Information Statement to all of
the appropriate holders of Optek Common Stock.
(c) Listing. Optek and Vision shall prepare, and
Vision shall file and pursue, an application to effect the
listing of the Vision Common Stock on the American Stock
Exchange.
(d) Charter Transfer Restriction. Vision shall
prepare and file with the office of the Secretary of State of the
State of Delaware an amendment to Vision's Certificate of
Incorporation, as amended (the "Charter Amendment"), that
prohibits the sale, transfer or other disposition of the shares
of Vision Common Stock to be distributed in the Distribution
(other than the sale of fractional shares by the Agent), until
the sooner to occur of (i) 60 days following the pricing of
Vision's proposed initial underwritten public offering of Vision
Common Stock (the "IPO") or (ii) March 1, 1998 (the "Charter
Transfer Restriction").
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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, Optek shall
deliver to Vision the certificates for the approximate 6,783,800
shares of Vision Common Stock owned by Optek, and Vision shall
cancel such certificates. In exchange therefor, and upon receipt
from the Agent of a certificate as to the number of shares of
Optek Common Stock outstanding as of the Distribution Record
Date, Vision shall deliver to the Agent on the Distribution Date
on behalf of Optek and for the benefit of the holders of record
of Optek Common Stock as of the Distribution Record Date, an
omnibus stock certificate representing in the aggregate 14 shares
of Vision Common Stock for every 100 shares of Optek Common Stock
outstanding as of the Distribution Record 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 Vision
Common Stock held by Optek shall pass to Optek's stockholders.
Optek shall instruct the Agent to distribute, beginning on or
promptly following the Distribution Date, to such holders of
Optek Common Stock on the Distribution Record Date, certificates
representing 14 shares of Vision Common Stock for every 100
shares of Optek Common Stock outstanding as of the Distribution
Record Date. Vision 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 Vision
Common Stock issued in the Distribution shall be fully paid,
nonassessable and free of preemptive rights. In addition, all
such shares (other than fractional shares sold by the Agent in
accordance with Section 4.1(b) below) shall be subject to the
Charter Transfer Restriction. Holders of Optek Common Stock
shall not be required to pay cash or other consideration for the
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Vision Common Stock received in the Distribution.
(b) No fractional shares of Vision Common Stock will
be received by Optek stockholders. Fractional shares, if any,
will be aggregated and sold, on behalf of the stockholders
entitled to receive such shares, by the Agent. The Agent will
use the net proceeds from the sale of fractional shares to make
cash payments to those stockholders otherwise entitled to receive
fractional shares in proportion to their respective interests in
such fractional shares.
(c) The Distribution shall not be effected unless
immediately thereafter the IPO is consummated.
4.2 Optek Board Action.
(a) The Optek Board shall establish in its sole
discretion and in accordance with all applicable rules of the
American Stock Exchange, the Distribution Record Date, the
Distribution Date, the date on which certificates representing
Vision Common Stock shall be mailed to holders of Optek Common
Stock and all appropriate procedures in connection with the
Distribution.
(b) In its sole discretion for any reason, the Optek
Board may rescind the declaration of the Distribution, and after
the declaration and until the Distribution Date, the Optek Board
may postpone, withdraw, cancel or abandon the Distribution for
any reason and simultaneously terminate this Agreement and the
Ancillary Agreements.
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,
Optek shall indemnify, defend and hold harmless the Vision
Indemnitees from and against (1) all Indemnifiable Losses arising
from or relating to the Optek 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
Vision as a consequence of any misstatement or omission of a
material fact with respect to Optek based on information supplied
by Optek 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
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Form 10; and (3) all Indemnifiable Losses arising from any breach
of or failure toperform any obligation on the part of any member
of Optek Group contained in this Agreement or any of the
Ancillary Agreements.
(b) Except as specifically otherwise provided in the
Ancillary Agreements, Vision shall indemnify, defend and hold
harmless the Optek Indemnitees from and against (1) all
Indemnifiable Losses arising from or relating to the Vision
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 Optek
as a consequence of any misstatement or omission of a material
fact with respect to Vision based on information supplied by
Vision 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 the Vision Group contained in this Agreement or any of the
Ancillary Agreements.
(c) If any Indemnifiable Loss arises from or relates
to both the Optek Business and the Vision Business, Optek shall
indemnify the Vision Indemnitees against any portion of such
Indemnifiable Loss that pertains more directly to the Optek
Business than to the Vision Business, and Vision shall indemnify
the Optek Indemnitees against any portion of such Indemnifiable
Loss that pertains more directly to the Vision Business than to
the Optek Business.
(d) Notwithstanding anything to the contrary set forth
herein, indemnification relating to any arrangements between any
member of the Optek Group and any member of the Vision Group (or
any unit of the Vision Business) for the provision after the
Distribution of goods and services in the ordinary course shall
be governed by the terms of such arrangements and not by this
Section.
5.3 Procedures for Indemnification for Third-Party Claims.
(a) Vision shall, and shall cause the other Vision Indemnitees
to, notify Optek in writing promptly after learning of any
Third-Party Claim for which any Vision Indemnitee intends to seek
indemnification from Optek under this Agreement. Optek shall,
and shall cause the other Optek Indemnitees to, notify Vision in
writing promptly after learning of any Third-Party Claim for
which any Optek Indemnitee intends to seek indemnification from
Vision 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
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Third-Party Claim in reasonable detail considering the
information provided to the Indemnitee.
(b) Except as otherwise provided in subsection (c) of
this Section, an Indemnifying Party may, by notice to the
Indemnitee and to Vision, if Optek is the Indemnifying Party, or
to Optek, if Vision 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 Vision, if the
Indemnitee is a Vision Indemnitee, or of Optek, if the Indemnitee
is an Optek 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 Third-Party Claim pursuant to this Article V, 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
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pay the reasonable attorneys' fees and expenses of one law firm
representing the Indemnitees involved in each jurisdiction with
respect thereto.
(e) Vision shall, and shall cause the other Vision
Indemnitees to, and Optek shall, and shall cause the other Optek
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 VI 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.
ARTICLE VI
ADDITIONAL ASSURANCES
6.1 Mutual Assurances. Optek and Vision 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 Optek or Vision to take any action
or reach any understandings which may violate any applicable
laws. Optek and Vision agree that they will not take any action
inconsistent with the facts and representations set forth in the
"no-action letter" request filed with the Commission in
connection with the Distribution and will use their best efforts
to cause such facts to remain true and correct and, if either
Optek or Vision shall take any such inconsistent action, or fail
to use such best efforts, it will indemnify the other party for
any expense or Liability incurred as a consequence thereof.
Optek and Vision 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, Optek and Vision shall bear their own expenses
associated with the Distribution.
ARTICLE VII
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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 Optek Board and the Vision Board and shall have
been executed and delivered by appropriate officers of Optek and
Vision.
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.
7.4 Consents. Optek 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 transaction contemplated by
this Agreement.
7.5 Charter Amendment. The Charter Amendment containing
the Charter Transfer Restriction shall have been filed with the
office of the Secretary of State of the State of Delaware and
shall have become effective under Delaware law.
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 satisfactory
to Optek and Vision.
7.7 Legal Proceedings. No legal proceedings affecting or
arising out of the transactions contemplated hereby or which
could otherwise affect Optek or Vision in a materially adverse
manner shall have been commenced or threatened against Optek,
Vision or the directors or officers of either Optek or Vision.
7.8 Material Changes. No material adverse change shall
have occurred with respect to Optek or Vision, the securities
markets or general economic or financial conditions which shall,
in the reasonable judgment of Optek and Vision, make the
transactions contemplated by this Agreement inadvisable.
ARTICLE VIII
ACCESS TO INFORMATION AND SERVICES
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8.1 Provision of Corporate Records. Upon Vision's request,
Optek shall arrange as soon as practicable following the
Distribution Date for the delivery to Vision of existing
corporate records in the possession of Optek relating to the
business and assets to be transferred to Vision, together with
all active agreements and any active litigation files relating to
the business, except to the extent such items are already in the
possession of Vision. Such records shall be the property of
Vision but shall be available to Optek for review and duplication
until Optek shall notify Vision in writing that such records are
no longer of use to Optek.
8.2 Access to Information. From and after the Distribution
Date, Optek shall afford to Vision and its 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 Optek's
possession relating to Vision's business, insofar as such access
is reasonably required by Vision. Vision shall afford to Optek
and its 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 Vision's possession relating to Optek's
business as constituted after the Distribution, insofar as such
access is reasonably required by Optek. 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 Optek and Vision shall use
reasonable efforts to make available to the other, 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.
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 Optek and Vision shall
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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 ninety (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 cause its employees and agents to keep
strictly confidential, any Information of or concerning the other
party which it or any of its agents or employees 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) was already
independently in the possession of the receiving party at the
time of disclosure; or (iii) 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.
ARTICLE IX
COVENANTS
9.1 Listing. Vision hereby agrees to use its reasonable
efforts to effect and maintain the listing of the Vision Common
Stock on the American 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.
ARTICLE X
NO REPRESENTATIONS OR WARRANTIES
10.1 No Representations or Warranties. Vision acknowledges
PAGE
that, prior to the date of this Agreement, it has had primary
responsibility for the operation and management of the Vision
Business and Optek acknowledges that, prior to the date of this
Agreement, it has had primary responsibility for the operation
and management of the Optek Business. Vision understands and
agrees that no member of the Optek Group is, in this Agreement or
in any other agreement or document, representing or warranting to
Vision or any member of the Vision Group in any way as to the
Vision Assets, the Vision Business or the Liabilities of the
Vision 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 Vision and
each member of the Vision group shall bear the economic and legal
risk that conveyances of the Vision Assets shall prove to be
insufficient, that the title of any member of the Vision group to
any Vision Assets shall be other than good and marketable and
free from encumbrances or that results from the failure of Vision
or any member of the Vision Group to obtain any consents or
approvals relating to the Vision 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 Optek and Vision.
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
PAGE
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 Optek Corporation
0X Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or to:
Thermo Vision Corporation
0X Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000
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, which consent shall not be
unreasonably withheld, 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
thisAgreement. 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 Successors and Assigns; No Third-Party Beneficiaries.
PAGE
This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their
successors and permitted assigns, but neither this Agreement nor
any of the rights, interests and obligations hereunder shall be
assigned by any party hereto without the prior written consent of
the other party. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
THERMO OPTEK CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name:
Title: President
THERMO VISION CORPORATION
By: /s/ Xxxxxxxx Xxxxx Xxxxxxx
--------------------------------
Name:
Title: President
