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EXHIBIT 10.9
VIASYS HEALTHCARE INC.
EXECUTIVE RETENTION AGREEMENT
THIS AGREEMENT by and between VIASYS HEALTHCARE INC., a Delaware corporation
(the "Company"), and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Executive") is made as of April
16, 2001 (the "Effective Date").
WHEREAS, the Company recognizes that, as is the case with many
publicly-held corporations, the possibility of a change in control of the
Company exists and that such possibility, and the uncertainty and questions
which it may raise among key personnel, may result in the departure or
distraction of key personnel to the detriment of the Company and its
stockholders;
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that appropriate steps should be taken to reinforce and encourage the
continued employment and dedication of the Company's key personnel without
distraction from the possibility of a change in control of the Company and
related events and circumstances; and
NOW, THEREFORE, as an inducement for and in consideration of the
Executive remaining in its employ, the Company agrees that the Executive shall
receive the severance benefits set forth in this Agreement in the event the
Executive's employment with the Company is terminated under the circumstances
described below subsequent to a Change in Control (as defined in Section 1.1).
1. KEY DEFINITIONS.
As used herein, the following terms shall have the following respective
meanings:
1.1 "CHANGE IN CONTROL" means an event or occurrence set forth
in any one or more of subsections (a) through (d) below that occurs on or after
the "Spin-Off" (including an event or occurrence that constitutes a Change in
Control under one of such subsections but is specifically exempted from another
such subsection):
(a) the acquisition by an individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership of any capital stock of the Company if, after such
acquisition, such Person beneficially owns (within the meaning of Rule 13d-3
promulgated under the Exchange Act) 40% or more of either (i) the
then-outstanding shares of common stock of the Company (the "Outstanding Company
Common Stock") or (ii) the combined voting power of the then-outstanding
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); PROVIDED, HOWEVER, that
for purposes of this subsection (a), the following acquisitions shall not
constitute a Change in Control: (i) any acquisition by the Company, (ii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation
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controlled by the Company, or (iii) any acquisition by any corporation pursuant
to a transaction which complies with clauses (i) and (ii) of subsection (c) of
this Section 1.1; or
(b) such time as the Continuing Directors (as
defined below) do not constitute a majority of the Board (or, if applicable,
the Board of Directors of a successor corporation to the Company), where the
term "Continuing Director" means at any date a member of the Board (i) who was a
member of the Board on the date of the Spin-Off or (ii) who was nominated or
elected subsequent to such date by at least a majority of the directors who were
Continuing Directors at the time of such nomination or election or whose
election to the Board was recommended or endorsed by at least a majority of the
directors who were Continuing Directors at the time of such nomination or
election; PROVIDED, HOWEVER, that there shall be excluded from this clause (ii)
any individual whose initial assumption of office occurred as a result of an
actual or threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or consents, by
or on behalf of a person other than the Board; or
(c) the consummation of a merger, consolidation,
reorganization, recapitalization or statutory share exchange involving the
Company or a sale or other disposition of all or substantially all of the assets
of the Company in one or a series of transactions (a "Business Combination"),
unless, immediately following such Business Combination, each of the following
two conditions is satisfied: (i) all or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding Company Common Stock
and Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 60% of the
then-outstanding shares of common stock and the combined voting power of the
then-outstanding securities entitled to vote generally in the election of
directors, respectively, of the resulting or acquiring corporation in such
Business Combination (which shall include, without limitation, a corporation
which as a result of such transaction owns the Company or substantially all of
the Company's assets either directly or through one or more subsidiaries) (such
resulting or acquiring corporation is referred to herein as the "Acquiring
Corporation") in substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, respectively; and (ii)
no Person (excluding the Acquiring Corporation or any employee benefit plan (or
related trust) maintained or sponsored by the Company or by the Acquiring
Corporation) beneficially owns, directly or indirectly, 40% or more of the then
outstanding shares of common stock of the Acquiring Corporation, or of the
combined voting power of the then-outstanding securities of such corporation
entitled to vote generally in the election of directors; or
(d) approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
1.2 "CHANGE IN CONTROL DATE" means the first date during the
Term (as defined in Section 2) on which a Change in Control occurs. Anything in
this Agreement to the contrary notwithstanding, if (a) a Change in Control
occurs, (b) the Executive's employment with the Company is terminated prior to
the date on which the Change in Control occurs, and (c) it is reasonably
demonstrated by the Executive that such termination of employment (i) was at the
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request of a third party who has taken steps reasonably calculated to effect a
Change in Control or (ii) otherwise arose in connection with or in anticipation
of a Change in Control, then for all purposes of this Agreement the "Change in
Control Date" shall mean the date immediately prior to the date of such
termination of employment.
1.3 "CAUSE" means the Executive's willful engagement in
illegal conduct or gross misconduct after the Change in Control Date which is
materially and demonstrably injurious to the Company. For purposes of this
Section 1.3, no act or failure to act by the Executive shall be considered
"willful" unless it is done, or omitted to be done, in bad faith and without
reasonable belief that the Executive's action or omission was in the best
interests of the Company.
1.4 "GOOD REASON" means the occurrence, without the
Executive's written consent, of any of the events or circumstances set forth in
clauses (a) through (g) below. Notwithstanding the occurrence of any such event
or circumstance, such occurrence shall not be deemed to constitute Good Reason
if, prior to the Date of Termination specified in the Notice of Termination
(each as defined in Section 3.2(a)) given by the Executive in respect thereof,
such event or circumstance has been fully corrected and the Executive has been
reasonably compensated for any losses or damages resulting therefrom (provided
that such right of correction by the Company shall only apply to the first
Notice of Termination for Good Reason given by the Executive).
(a) the assignment to the Executive of duties
inconsistent in any material respect with the Executive's position (including
status, offices, titles and reporting requirements), authority or
responsibilities in effect immediately prior to the earliest to occur of (i) the
Change in Control Date, (ii) the date of the execution by the Company of the
initial written agreement or instrument providing for the Change in Control or
(iii) the date of the adoption by the Board of Directors of a resolution
providing for the Change in Control (with the earliest to occur of such dates
referred to herein as the "Measurement Date") or a material diminution in such
position, authority or responsibilities;
(b) a reduction in the Executive's annual base
salary as in effect on the Measurement Date or as the same was or may be
increased thereafter from time to time;
(c) the failure by the Company to (i) continue in
effect any material compensation or benefit plan or program (including
without limitation any life insurance, medical, health and accident or
disability plan and any vacation or automobile program or policy) (a "Benefit
Plan") in which the Executive participates or which is applicable to the
Executive immediately prior to the Measurement Date, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has been
made with respect to such plan or program, (ii) continue the Executive's
participation therein (or in such substitute or alternative plan) on a basis not
materially less favorable than the basis existing immediately prior to the
Measurement Date (iii) award cash bonuses to the Executive in amounts and in a
manner substantially consistent with past practice in light of the Company's
financial performance or (iv) continue to provide any material fringe benefit
enjoyed by Executive immediately prior to the Measurement Date;
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(d) a change by the Company in the location at which
the Executive performs his principal duties for the Company to a new
location that is both (i) outside a radius of 50 miles from the Executive's
principal residence immediately prior to the Measurement Date and (ii) more than
30 miles from the location at which the Executive performed his principal duties
for the Company immediately prior to the Measurement Date; or a requirement by
the Company that the Executive travel on Company business to a substantially
greater extent than required immediately prior to the Measurement Date;
(e) the failure of the Company to obtain the
agreement from any successor to the Company to assume and agree to perform this
Agreement, as required by Section 6.1;
(f) a purported termination of the Executive's
employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 3.2(a); or
(g) any failure of the Company to pay or provide to
the Executive any portion of the Executive's compensation or benefits due
under any Benefit Plan within seven days of the date such compensation or
benefits are due, or any material breach by the Company of this Agreement or any
employment agreement with the Executive.
The Executive's right to terminate his employment for Good Reason shall
not be affected by his incapacity due to physical or mental illness.
1.5 "DISABILITY" means the Executive's absence from the
full-time performance of the Executive's duties with the Company for 180
consecutive calendar days as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to the Executive or the Executive's
legal representative.
1.6 "SPIN-OFF" means the distribution by Thermo Electron
Corporation, a Delaware corporation ("Thermo"), to its stockholders of all or
substantially all of the shares of the Company's common stock, par value $0.01
per share, held beneficially by Thermo in a tax-free spin-off under Section 355
of the Internal Revenue Code of 1986, as amended (the "Code").
2. TERM OF AGREEMENT. This Agreement, and all rights and obligations of
the parties hereunder, shall take effect upon the effective date of the Spin-Off
and shall expire upon the first to occur of (a) the expiration of the Term (as
defined below) if a Change in Control has not occurred during the Term, (b) the
date 18 months after the Change in Control Date, if the Executive is still
employed by the Company as of such later date, or (c) the fulfillment by the
Company of all of its obligations under Sections 4 and 5.2 if the Executive's
employment with the Company terminates within 18 months following the Change in
Control Date. "Term" shall mean the period commencing as of the effective date
of the Spin-Off and continuing in effect through the "Term of Employment", as
defined in the Employment Agreement by and between the Company and the Executive
dated as of April 2, 2001.
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3. EMPLOYMENT STATUS; TERMINATION FOLLOWING CHANGE IN CONTROL.
3.1 NOT AN EMPLOYMENT CONTRACT. The Executive acknowledges
that this Agreement does not constitute a contract of employment or impose on
the Company any obligation to retain the Executive as an employee and that this
Agreement does not prevent the Executive from terminating employment at any
time. If the Executive's employment with the Company terminates for any reason
and subsequently a Change in Control shall occur, the Executive shall not be
entitled to any benefits hereunder except as otherwise provided pursuant to
Section 1.2.
3.2 TERMINATION OF EMPLOYMENT.
(a) If the Change in Control Date occurs during the
Term, any termination of the Executive's employment by the Company or by
the Executive within 18 months following the Change in Control Date (other than
due to the death of the Executive) shall be communicated by a written notice to
the other party hereto (the "Notice of Termination"), given in accordance with
Section 7. Any Notice of Termination shall: (i) indicate the specific
termination provision (if any) of this Agreement relied upon by the party giving
such notice, (ii) to the extent applicable, set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated and (iii) specify the
Date of Termination (as defined below). The effective date of an employment
termination (the "Date of Termination") shall be the close of business on the
date specified in the Notice of Termination (which date may not be less than 15
days or more than 120 days after the date of delivery of such Notice of
Termination), in the case of a termination other than one due to the Executive's
death, or the date of the Executive's death, as the case may be. In the event
the Company fails to satisfy the requirements of Section 3.2(a) regarding a
Notice of Termination, the purported termination of the Executive's employment
pursuant to such Notice of Termination shall not be effective for purposes of
this Agreement.
(b) The failure by the Executive or the Company to
set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting any such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(c) Any Notice of Termination for Cause given by the
Company must be given within 90 days of the occurrence of the event(s) or
circumstance(s) which constitute(s) Cause. Prior to any Notice of Termination
for Cause being given (and prior to any termination for Cause being effective),
the Executive shall be entitled to a hearing before the Board of Directors of
the Company at which he may, at his election, be represented by counsel and at
which he shall have a reasonable opportunity to be heard. Such hearing shall be
held on not less than 15 days prior written notice to the Executive stating the
Board of Directors' intention to terminate the Executive for Cause and stating
in detail the particular event(s) or circumstance(s) which the Board of
Directors believes constitutes Cause for termination.
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(d) Any Notice of Termination for Good Reason given
by the Executive must be given within 90 days of the occurrence of the
event(s) or circumstance(s) which constitute(s) Good Reason.
4. BENEFITS TO EXECUTIVE.
4.1 STOCK ACCELERATION. If the Change in Control Date occurs
during the Term, then, effective upon the Change in Control Date, (a) each
outstanding option to purchase shares of Common Stock of the Company held by the
Executive shall become immediately exercisable in full and will no longer be
subject to a right of repurchase by the Company and (b) each outstanding
restricted stock award shall be deemed to be fully vested and will no longer be
subject to a right of repurchase by the Company.
4.2 COMPENSATION. If the Change in Control Date occurs during
the Term and the Executive's employment with the Company terminates within 18
months following the Change in Control Date, the Executive shall be entitled to
the following benefits:
(a) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. If
the Executive's employment with the Company is terminated by the Company
(other than for Cause, Disability or Death) or by the Executive for Good
Reason within 18 months following the Change in Control Date, then the Executive
shall be entitled to the following benefits:
(i) the Company shall pay to the Executive
in a lump sum in cash within 30 days after the Date of Termination the
aggregate of the following amounts:
(1) the sum of (A) the Executive's
base salary through the Date of Termination, (B) the product of (x) the
annual bonus paid or payable (including any bonus or portion thereof which has
been earned but deferred) for the most recently completed fiscal year and (y) a
fraction, the numerator of which is the number of days in the current fiscal
year through the Date of Termination, and the denominator of which is 365 and
(C) the amount of any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon) and any accrued
vacation pay, in each case to the extent not previously paid (the sum of the
amounts described in clauses (A), (B), and (C) shall be hereinafter referred to
as the "Accrued Obligations"); and
(2) the amount equal to (A) three
multiplied by (B) the sum of (x) the Executive's highest annual base
salary in any twelve-month period (on a rolling basis) during the five-year
period prior to the Change in Control Date and (y) the Executive's highest
annual bonus in any twelve-month period (on a rolling basis) during the
five-year period prior to the Change in Control Date.
(ii) for three years after the Date of
Termination, or such longer period as may be provided by the terms of the
appropriate plan, program, practice or policy, the Company shall continue to
provide benefits to the Executive and the Executive's family at least equal to
those which would have been provided to them if the Executive's employment had
not been terminated, in accordance with the applicable Benefit Plans in effect
on the Measurement
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Date or, if more favorable to the Executive and his family, in effect generally
at any time thereafter with respect to other peer executives of the Company and
its affiliated companies; PROVIDED, HOWEVER, that if the Executive becomes
reemployed with another employer and is eligible to receive a particular type of
benefits (e.g., health insurance benefits) from such employer on terms at least
as favorable to the Executive and his family as those being provided by the
Company, then the Company shall no longer be required to provide those
particular benefits to the Executive and his family;
(iii) to the extent not previously paid or
provided, the Company shall timely pay or provide to the Executive any other
amounts or benefits required to be paid or provided or which the Executive is
eligible to receive following the Executive's termination of employment under
any plan, program, policy, practice, contract or agreement of the Company and
its affiliated companies (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits"); and
(iv) for purposes of determining eligibility
(but not the time of commencement of benefits) of the Executive for
retiree benefits to which the Executive is entitled, the Executive shall be
considered to have remained employed by the Company until three years after the
Date of Termination.
(b) RESIGNATION WITHOUT GOOD REASON; TERMINATION
FOR DEATH OR DISABILITY. If the Executive voluntarily terminates his
employment with the Company within 18 months following the Change in Control
Date, excluding a termination for Good Reason, or if the Executive's employment
with the Company is terminated by reason of the Executive's death or Disability
within 18 months following the Change in Control Date, then the Company shall
(i) pay the Executive (or his estate, if applicable), in a lump sum in cash
within 30 days after the Date of Termination, the Accrued Obligations and (ii)
timely pay or provide to the Executive the Other Benefits.
(c) TERMINATION FOR CAUSE. If the Company terminates
the Executive's employment with the Company for Cause within 18 months
following the Change in Control Date, then the Company shall (i) pay the
Executive, in a lump sum in cash within 30 days after the Date of Termination,
the sum of (A) the Executive's annual base salary through the Date of
Termination and (B) the amount of any compensation previously deferred by the
Executive, in each case to the extent not previously paid, and (ii) timely pay
or provide to the Executive the Other Benefits.
4.3 TAXES.
(a) In the event that the Company undergoes a
"Change in Ownership or Control" (as defined below), and thereafter, the
Executive becomes eligible to receive "Contingent Compensation Payments" (as
defined below) the Company shall, as soon as administratively feasible after the
Executive becomes so eligible determine and notify the Executive (with
reasonable detail regarding the basis for its determinations) (i) which of the
payments or benefits due to the Executive following such Change in Ownership or
Control constitute Contingent Compensation Payments, (ii) the amount, if any, of
the excise tax (the
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"Excise Tax") payable pursuant to Section 4999 of the Code, by the Executive
with respect to such Contingent Compensation Payment and (iii) the amount of the
"Gross-Up Payment" (as defined below) due to the Executive with respect to such
Contingent Compensation Payment. Within 30 days after delivery of such notice to
the Executive, the Executive shall deliver a response to the Company (the
"Executive Response") stating either (A) that he agrees with the Company's
determination pursuant to the preceding sentence or (B) that he disagrees with
such determination, in which case he shall indicate which payment and/or
benefits should be characterized as a Contingent Compensation Payment, the
amount of the Excise Tax with respect to such Contingent Compensation Payment
and the amount of the Gross-Up Payment due to the Executive with respect to such
Contingent Compensation Payment. If the Executive states in the Executive
Response that he agrees with the Company's determination, the Company shall make
the Gross-Up Payment to the Executive within three business days following
delivery to the Company of the Executive Response. If the Executive states in
the Executive Response that he disagrees with the Company's determination, then,
for a period of 15 days following delivery of the Executive Response, the
Executive and the Company shall use good faith efforts to resolve such dispute.
If such dispute is not resolved within such 15-day period, such dispute shall be
settled exclusively by arbitration in Boston, Massachusetts, in accordance with
the rules of the American Arbitration Association then in effect. Judgment may
be entered on the arbitrator's award in any court having jurisdiction. The
Company shall, within three business days following delivery to the Company of
the Executive Response, make to the Executive those Gross-Up Payments as to
which there is no dispute between the Company and the Executive regarding
whether they should be made. The balance of the Gross-Up Payments shall be made
within three business days following the resolution of such dispute. The amount
of any payments to be made to the Executive following the resolution of such
dispute shall be increased by the amount of the accrued interest thereon
computed at the prime rate announced from time to time by The Wall Street
Journal compounded monthly from the date that such payments originally were due.
In the event that the Executive fails to deliver an Executive Response on or
before the required date, the Company's initial determination shall be final.
(b) For purposes of this Section 4.3, the following
terms shall have the following respective meanings:
(i) "Change in Ownership or Control" shall
mean a change in the ownership or effective control of the Company or in
the ownership of a substantial portion of the assets of the Company determined
in accordance with Section 280G(b)(2) of the Code.
(ii) "Contingent Compensation Payment" shall
mean any payment (or benefit) in the nature of compensation that is made
or supplied to a "disqualified individual" (as defined in Section 280G(c) of the
Code) and that is contingent (within the meaning of Section 280G(b)(2)(A)(i) of
the Code) on a Change in Ownership or Control of the Company.
(iii) "Gross-Up Payment" shall mean an
amount equal to the sum of (i) the amount of the Excise Tax payable with respect
to a Contingent Compensation Payment and (ii) the amount necessary to pay all
additional taxes imposed on (or economically borne by) the Executive (including
the Excise Taxes, state and federal income taxes and all
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applicable withholding taxes) attributable to the receipt of such Gross-Up
Payment. For purposes of the preceding sentence, all taxes attributable to the
receipt of the Gross-Up Payment shall be computed assuming the application of
the maximum tax rates provided by law.
4.4 OUTPLACEMENT SERVICES. In the event the Executive is
terminated by the Company (other than for Cause, Disability or Death), or the
Executive terminates employment for Good Reason, within 18 months following the
Change in Control Date, the Company shall provide outplacement services through
one or more outside firms of the Executive's choosing up to an aggregate of
$25,000, with such services to extend until the earlier of (i) 12 months
following the termination of Executive's employment or (ii) the date the
Executive secures full time employment.
4.5 MITIGATION. The Executive shall not be required to
mitigate the amount of any payment or benefits provided for in this Section 4 by
seeking other employment or otherwise. Further, except as provided in Section
4.2(a)(ii), the amount of any payment or benefits provided for in this Section 4
shall not be reduced by any compensation earned by the Executive as a result of
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company or otherwise.
5. DISPUTES.
5.1 SETTLEMENT OF DISPUTES; ARBITRATION. All claims by the
Executive for benefits under this Agreement shall be directed to and determined
by the Board of Directors of the Company and shall be in writing. Any denial by
the Board of Directors of a claim for benefits under this Agreement shall be
delivered to the Executive in writing and shall set forth the specific reasons
for the denial and the specific provisions of this Agreement relied upon. The
Board of Directors shall afford a reasonable opportunity to the Executive for a
review of the decision denying a claim. Any further dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration in Boston, Massachusetts, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
5.2 EXPENSES. The Company agrees to pay as incurred, to the
full extent permitted by law, all legal, accounting and other fees and expenses
which the Executive may reasonably incur as a result of any claim or contest
(regardless of the outcome thereof) by the Company, the Executive or others
regarding the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive regarding the amount of any payment or benefits
pursuant to this Agreement), plus in each case interest on any delayed payment
at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the
Code.
6. SUCCESSORS.
6.1 SUCCESSOR TO COMPANY. The Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or
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substantially all of the business or assets of the Company expressly to assume
and agree to perform this Agreement to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain an assumption of this Agreement at or prior to the
effectiveness of any succession shall be a breach of this Agreement and shall
constitute Good Reason if the Executive elects to terminate employment, except
that for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination. As used in
this Agreement, "Company" shall mean the Company as defined above and any
successor to its business or assets as aforesaid which assumes and agrees to
perform this Agreement, by operation of law or otherwise.
6.2 SUCCESSOR TO EXECUTIVE. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amount would still
be payable to the Executive or his family hereunder if the Executive had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the executors, personal
representatives or administrators of the Executive's estate.
7. NOTICE. All notices, instructions and other communications given
hereunder or in connection herewith shall be in writing. Any such notice,
instruction or communication shall be sent either (i) by registered or certified
mail, return receipt requested, postage prepaid, or (ii) prepaid via a reputable
nationwide overnight courier service, in each case addressed to the Company, at
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ and to the Executive at the Executive's
principal residence as currently reflected on the Company's records (or to such
other address as either the Company or the Executive may have furnished to the
other in writing in accordance herewith). Any such notice, instruction or
communication shall be deemed to have been delivered five business days after it
is sent by registered or certified mail, return receipt requested, postage
prepaid, or one business day after it is sent via a reputable nationwide
overnight courier service. Either party may give any notice, instruction or
other communication hereunder using any other means, but no such notice,
instruction or other communication shall be deemed to have been duly delivered
unless and until it actually is received by the party for whom it is intended.
8. MISCELLANEOUS.
8.1 SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
8.2 INJUNCTIVE RELIEF. The Company and the Executive agree
that any breach of this Agreement by the Company is likely to cause the
Executive substantial and irrevocable damage and therefore, in the event of any
such breach, in addition to such other remedies which may be available, the
Executive shall have the right to specific performance and injunctive relief.
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8.3 GOVERNING LAW. The validity, interpretation, construction
and performance of this Agreement shall be governed by the internal laws of the
Commonwealth of Massachusetts, without regard to conflicts of law principles.
8.4 WAIVERS. No waiver by the Executive at any time of any
breach of, or compliance with, any provision of this Agreement to be performed
by the Company shall be deemed a waiver of that or any other provision at any
subsequent time.
8.5 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but both of which
together shall constitute one and the same instrument.
8.6 TAX WITHHOLDING. Any payments provided for hereunder shall
be paid net of any applicable tax withholding required under federal,
state or local law.
8.7 ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in respect of the
subject matter contained herein; and any prior agreement of the parties hereto
in respect of the subject matter contained herein is hereby terminated and
cancelled.
8.8 AMENDMENTS. This Agreement may be amended or modified only
by a written instrument executed by both the Company and the Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first set forth above.
VIASYS HEALTHCARE INC.
/s/ ▇▇▇▇ Pol
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By: ▇▇▇▇ Pol
Senior Vice President, Human Resources
EXECUTIVE
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