Exhibit 10.15
TAX MATTERS AGREEMENT
THIS TAX MATTERS AGREEMENT (the "Agreement") is made as of
November 24th, 1997 by and among Thermo Optek Corporation, a
Delaware corporation ("Optek" and, together with its subsidiaries
existing immediately following the Distribution, the "Optek
Group"), and Thermo Vision Corporation, a Delaware corporation
and a 100%-owned subsidiary of Optek ("Vision" and, together with
its subsidiaries existing immediately following the Distribution,
the "Vision Group").
WHEREAS, Optek and Vision have entered into a Plan and
Agreement of Distribution dated as of [date] (the "Distribution
Agreement") providing for the distribution of all of the Vision
stock owned by Optek to Optek's shareholders in accordance with
the Distribution Agreement (the "Distribution");
WHEREAS, prior to and following the Distribution, the Optek
Group and the Vision Group will both be part of an affiliated
group of corporations (the "Thermo Group") of which Thermo
Electron Corporation, a Delaware corporation ("Thermo Electron"),
is the common parent, within the meaning of Section 1504(a) of
the Internal Revenue Code of 1986, as amended (the "Code");
WHEREAS, Optek has entered into a Tax Allocation Agreement
with Thermo Electron with respect to the allocation of taxes
among members of the affiliated group filing a consolidated
United States federal income tax return, and Vision will enter
into a substantially similar Tax Allocation Agreement with Thermo
Electron; and
WHEREAS, Optek and Vision desire to set forth their
agreement regarding the allocation between Optek and Vision of
all liabilities and benefits relating to or affecting Taxes (as
defined below) paid or payable by either of them with respect to
the Distribution.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the parties
hereby agree as follows:
1. Definitions.
"Tax" means any federal, state, local or foreign
income, profits, alternative or add-on minimum, severance, sales,
use, service, service use, ad valorem, gross receipts, license,
value added, franchise, transfer, recording, real estate,
withholding, payroll, employment, excise, occupation,
unemployment insurance, social security, business license,
business organization, stamp, environmental, premium or property
tax, or any other tax, governmental fee or other like assessment
or charge of any kind whatsoever, together with any related
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interest, penalties and additions to any such tax, imposed by any
taxing authority upon Optek, the Optek Group, Vision, the Vision
Group, Thermo Electron, the Thermo Group, or any of their
respective members or divisions or branches.
"Restructuring Tax" means any Taxes, other than
Transaction Taxes, to the extent that such Taxes would not have
been incurred but for the consummation of the transactions
contemplated by the Distribution Agreement.
"Transaction Taxes" means any sales, use, transfer,
real estate transfer, recording or other similar Taxes incurred
in connection with consummation of the transactions contemplated
by the Distribution Agreement.
2. Responsibility for Restructuring Taxes.
a. Responsibility of Optek Group. Optek and any
successor corporation shall be responsible for, and shall
indemnify and hold harmless Vision and each member of the Vision
Group and the other members of the Thermo Group from, all
liability, loss, cost, expense or damage in any way occasioned by
any Restructuring Taxes which are directly or indirectly
attributable to one or more of the following described events or
transactions occurring after the Distribution Date with respect
to Optek or any successor corporation: a reorganization,
consolidation or merger; the sale or other disposition of Optek
Assets other than in the ordinary course of business; Optek
ceasing to conduct an active trade or business; the acquisition
or disposition of shares of stock of Optek by any person or
persons; the redemption or repurchase of shares of its stock by
Optek or any successor; the recapitalization or other
reclassification of the shares of Optek or any successor; the
complete or partial liquidation of Optek or any successor; the
exercisability, transferability or repurchase of rights
distributed pursuant to a stock purchase rights plan; or any
other act or omission of Optek which results in failure to comply
with each representation and statement made to the IRS in
connection with the rulings received with respect to the
Distribution.
b. Responsibility of Vision Group . Vision and any
successor corporation shall be responsible for, and shall
indemnify and hold harmless Optek and each member of the Optek
Group and the other members of the Thermo Group from, all
liability, loss, cost, expense or damage in any way occasioned by
any Restructuring Taxes which are directly or indirectly
attributable to one or more of the following described events or
transactions occurring after the Distribution Date with respect
to Vision or any successor corporation: a reorganization,
consolidation or merger; the sale or other disposition of Vision
Assets other than in the ordinary course of business; Vision
ceasing to conduct an active trade or business; the acquisition
or disposition of shares of stock of Vision by any person or
persons; the redemption or repurchase of shares of its stock by
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Vision or any successor; the recapitalization or other
reclassification of the shares of Vision or any successor; the
complete or partial liquidation of Vision or any successor; the
exercisability, transferability or repurchase of rights
distributed pursuant to a stock purchase rights plan; or any
other act or omission of Vision which results in failure to
comply with each representation and statement made to the IRS in
connection with the rulings received with respect to the
Distribution.
c. Joint Responsibility of Optek Group and Vision
Group. If any Restructuring Taxes should arise for which neither
Optek nor Vision is responsible under Section 2.02(a) or Section
2.02(b), respectively, each of Optek and Vision shall be
responsible for 50 percent of such Restructuring Taxes, and each
party shall indemnify, defend and hold harmless the other party
and each member of their respective Groups from and against all
liability, cost, expense or damage in any way occasioned by such
Restructuring Taxes.
3. Miscellaneous.
a. Expenses. Unless otherwise expressly provided in
this Agreement, each party shall bear any and all expenses that
arise from its obligations under this Agreement.
b. Entire Agreement. This Agreement constitutes the
entire agreement of the parties concerning the subject matter
hereof.
c. Term. This Agreement shall commence on the date
first stated above, and shall continue in effect for ten years.
d. Successors and Assigns. This Agreement and all of
the provisions hereof shall be binding upon and inure to the
benefit of the parties and their respective successors and
assigns.
e. Amendments. This Agreement may not be modified or
amended except by an agreement in writing, signed by the parties
hereto.
f. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to be one and the same
instrument.
g. Governing Law. This Agreement shall be governed
by and construed in accordance with the domestic substantive laws
of The Commonwealth of Massachusetts without regard to any choice
or conflict of law rule or provision that would result in the
application of the domestic substantive laws of any other
jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of
the date first above written.
THERMO OPTEK CORPORATION
By: /s/Xxxxxx X. Xxxxxxxxx
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Title: President
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THERMO VISION CORPORATION
By: /s/Xxxxxxxx Xxxxx Xxxxxxx
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Title: President
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