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Plan and Agreement of Distribution [Amendment No. 1]
Plan and Agreement of Distribution [Amendment No. 1] (4K)
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FIRST AMENDMENT TO PLAN AND AGREEMENT OF DISTRIBUTION
This first amendment TO THE Plan and Agreement of Distribution (this "Amendment") is made as of the 27th day of December, 2001 by and between Thermo Electron Corporation, a Delaware corporation ("Thermo Electron"), and Kadant Inc., a Delaware corporation ("Kadant"). Capitalized terms used herein without definition shall have the same meanings ascribed to such terms in the Distribution Agreement (as defined below).
RECITALS
WHEREAS, Thermo Electron and Kadant are parties to that certain Plan and Agreement of Distribution dated as of August 3, 2001 (the "Distribution Agreement");
WHEREAS, the parties hereto desire to amend the Distribution Agreement as herein provided:
NOW THEREFORE, in consideration of the covenants and agreements
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Kadant
As referenced in this Plan and Agreement of Distribution [Amendment No. 1]:
Kadant
Inc – THE Plan and Agreement of Distribution (this
"Amendment") is made as of the 27th day of December, 2001 by and between Thermo
Electron Corporation, a Delaware corporation ("Thermo Electron"), and Kadant
Inc ., a Delaware corporation ("Kadant"). Capitalized terms used herein without
definition shall have the same meanings ascribed to such terms in the
Distribution Agreement (as defined below).
RECITALS
WHEREAS, Thermo _____________
KADANT INC – WHEREOF, the parties hereto have executed this Amendment as
of the date first set forth above.
THERMO ELECTRON CORPORATION
By: /s/Kenneth J. Apicerno
----------------------------------------
Name: Kenneth J. Apicerno
Title: Treasurer
KADANT INC .
By: /s/Thomas M. O'Brien
----------------------------------------
Name: Thomas M. O'Brien
Title: Executive Vice President and CFO
{/TEXT}
{/DOCUMENT} _____________
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Plan and Agreement of Distribution
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{DOCUMENT} {TYPE}EX-99.3 {SEQUENCE}7 {FILENAME}dex993.txt {DESCRIPTION}PLAN AND AGREEMENT OF DISTRIBUTION {TEXT} {PAGE}
EXHIBIT 99.3 ------------
PLAN AND AGREEMENT OF DISTRIBUTION
THIS PLAN AND AGREEMENT OF DISTRIBUTION (the "Agreement") is made as of the 3rd day of August, 2001, between Thermo Electron Corporation, a Delaware corporation ("Thermo Electron"), and Kadant Inc., a Delaware corporation ("Kadant").
RECITALS --------
WHEREAS, Thermo Electron is the holder of approximately 91% of the issued and outstanding shares of Common Stock, $.01 par value per share, of Kadant ("Kadant Common Stock"); and
WHEREAS, it is the intention of Thermo Electron to distribute all of the issued and outstanding shares of Kadant Common Stock held by Thermo Electron to the stockholders of Thermo Electron (the "Distribution"); and
WHEREAS, Thermo Electron and Kadant 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 Kadant providing services as a director to Thermo Electron or any member of the Thermo Electron Group and Kadant or any member of the Kadant Group, respectively, as of the Distribution Date. {PAGE}
"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 Kadant (and its subsidiaries), and vice versa, for purposes of this Agreement.
"Agent" means American Stock Transfer & Trust Company, the ----- distribution agent appointed by Thermo Electron to distribute the shares of Kadant 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, without limitation, the Tax Matters Agreement and the Transition Services Agreement.
"Cash" means cash and cash equivalents and available for sale ---- investments shown on the consolidated balance sheet of Kadant in accordance with GAAP.
"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. ----------
"Debenture Redemption Event" has occurred if the Kadant Common Stock -------------------------- (or other equity securities of Kadant into which the Kadant Debentures are then convertible) is neither listed for trading on a United States national securities exchange nor approved for trading on an established automated over-the-counter trading market in the United States.
"Distributed Kadant per Share Amount" means the fraction of a share of ----------------------------------- Kadant Common Stock (on a post-Reverse Split basis and rounded to no less than the fourth decimal place) obtained by dividing the number of Distribution Shares by the total number of shares of Thermo Electron Common Stock outstanding as of 5:00 p.m., Boston Time, on the Distribution Record Date.
"Distribution" has the meaning ascribed to it in the Recitals. ------------
"Distribution Date" means the date of effecting the Distribution, as ----------------- determined by the Thermo Electron Board.
"Distribution Record Date" means the date determined by the Thermo ------------------------ Electron Board as of which the holders of Thermo Electron Common Stock and their respective stock holdings shall be determined for purposes of distributing Kadant Common Stock to such Thermo Electron stockholders.
"EBITA" means, with respect to Kadant for any fiscal period, an amount ----- equal to the sum of (a) Operating Income of Kadant on a consolidated basis excluding restructuring and other unusual charges or income (such as gains on sales of assets)
2 {PAGE}
included in Operating Income plus (b) amortization of good will and other intangible assets of Kadant on a consolidated basis for such fiscal period, all as determined in accordance with GAAP.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, ------------ together with the rules and regulations promulgated thereunder.
"Fibergen Redemption Rights" means the redemption rights relating to -------------------------- the outstanding common stock of Thermo Fibergen, which rights are guaranteed, on a subordinated basis, by Thermo Electron pursuant to the terms of the Guarantee Agreement dated September 13, 1996 by and among Kadant, Thermo Electron and the Representatives (as defined therein).
"Fundamental Change" means (a) the acquisition by an individual, ------------------ entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) other than a member of the Thermo Electron Group of beneficial ownership of any capital stock of Kadant if, after such acquisition, such individual, entity or group beneficially owns (within the meaning of Rule 13d-3 promulgated under the Exchange Act) 30% or more of either (i) the then-outstanding shares of Kadant Common Stock or (ii) the combined voting power of the then-outstanding securities of Kadant entitled to vote generally in the election of directors, (b) any acquisition of the business of Kadant by consolidation with, or merger of Kadant into, any other corporation, or any merger of another corporation into Kadant, (c) any sale or transfer, in one or more transactions, of all or substantially all of the assets of Kadant (which shall not include the sale or transfer of any portion of the assets of Kadant to any corporation or corporations if each of such corporations immediately following such transfer is at least 51% owned, directly or indirectly, by Kadant), or (d) the occurrence of a Debenture Redemption Event.
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Kadant
As referenced in this Plan and Agreement of Distribution:
Kadant Inc – OF DISTRIBUTION
THIS PLAN AND AGREEMENT OF DISTRIBUTION (the "Agreement") is made as of the
3rd day of August, 2001, between Thermo Electron Corporation, a Delaware
corporation ("Thermo Electron"), and Kadant Inc ., a Delaware corporation
("Kadant").
RECITALS
--------
WHEREAS, Thermo Electron is the holder of approximately 91% of the issued
and outstanding shares of Common Stock, $.01 par value per share, of _____________
Kadant (inc – directly or indirectly guaranteed by any member of the Kadant Group,
which, in the case of clauses (a) - (d) above, are as shown own on the
consolidated financial statements of Kadant (inc luding the footnotes
thereto) determined in accordance with GAAP.
3
{PAGE}
"Indemnifiable Losses" means all losses, Liabilities, damages, claims,
--------------------
demands, judgments or settlements of any nature or kind, known or _____________
Kadant Inc – as follows:
Thermo Electron Corporation
81 Wyman Street
P.O. Box 9046
Waltham, MA 02454-9046
Attention: Chief Executive Officer
Telephone: (781) 622-1000
Telecopier: (781) 622-1283
or to:
Kadant Inc .
245 Winter Street
Waltham, MA 02451
Attention: Chief Executive Officer
Telephone: (781) 370-1667
Telecopier: (781) 370-1660
11.7 Successors and Assigns. This Agreement and any of the _____________
KADANT INC – parties have executed this Agreement as of the date
first written above.
THERMO ELECTRON CORPORATION
By: /s/ R.F. Syron
-----------------------------------------
Name: R.F. Syron
---------------------------------------
Title: Chairman and Chief Executive Officer
--------------------------------------
KADANT INC .
By: /s/ William A. Rainville
------------------------------------------
Name: William A. Rainville
-----------------------------------------
Title: President and Chief Executive Officer
----------------------------------------
Attachments:
Exhibit A Tax Matters Agreement
Exhibit B Transition Services Agreement
26
{PAGE}
Schedule _____________
dt 1330363
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Viasys
As referenced in this Plan and Agreement of Distribution:
Viasys Healthcare
Inc – 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 Viasys Healthcare
Inc .), other than the Kadant 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 _____________
Viasys Healthcare Inc – 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 Viasys Healthcare 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 _____________
Viasys
Healthcare Inc – 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 Viasys
Healthcare Inc . by Thermo Electron to the stockholders of Thermo Electron.
7.10 Satisfaction or Waiver of Conditions. Any determination made by the
Board of Directors of Thermo Electron on behalf _____________
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Plan and Agreement of Distribution
Plan and Agreement of Distribution (72K)
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PLAN AND AGREEMENT OF DISTRIBUTION
THIS PLAN AND AGREEMENT OF DISTRIBUTION (this "Agreement") is entered into
as of November 15, 2001, between Thermo Electron Corporation, a Delaware
corporation ("Thermo Electron"), and Viasys Healthcare Inc., a Delaware
corporation ("Viasys").
RECITALS
WHEREAS, Thermo Electron is the holder of all of the issued and
outstanding shares of Common Stock, $.01 par value per share, of Viasys ("Viasys
Common Stock; and
WHEREAS, Thermo . . .
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Kadant
As referenced in this Plan and Agreement of Distribution:
Kadant Inc – Business" means all of the businesses and
operations conducted at any time, whether prior to, on or after the
Distribution Date, by any member of the Thermo Electron Group (including
Kadant Inc . and its subsidiaries), other than the Viasys Business.
"Thermo Electron Common Stock" means the Common Stock, $1.00 par
value per share, of Thermo Electron.
"Thermo Electron Group" means _____________
Kadant Inc – 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 _____________
Kadant
Inc – opinion as to the solvency of
Thermo Electron and related matters immediately prior to and after giving effect
to the Distribution and the distribution of shares of common stock of Kadant
Inc . by Thermo Electron to the stockholders of Thermo Electron.
7.11 SATISFACTION OR WAIVER OF CONDITIONS. Any determination made by the
Board of Directors of Thermo Electron on behalf _____________
dt 1330367
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Viasys
As referenced in this Plan and Agreement of Distribution:
Viasys Healthcare Inc – AND AGREEMENT OF DISTRIBUTION
THIS PLAN AND AGREEMENT OF DISTRIBUTION (this "Agreement") is entered into
as of November 15, 2001, between Thermo Electron Corporation, a Delaware
corporation ("Thermo Electron"), and Viasys Healthcare Inc ., a Delaware
corporation ("Viasys").
RECITALS
WHEREAS, Thermo Electron is the holder of all of the issued and
outstanding shares of Common Stock, $.01 par value per share, of Viasys (" _____________
Viasys Healthcare Inc – as follows:
Thermo Electron Corporation
81 Wyman Street
P.O. Box 9046
Waltham, MA 02454-9046
Attention: Chief Executive Officer
Telephone: (781) 622-1000
Telecopier: (781) 622-1283
or to:
Viasys Healthcare Inc .
700 South Henderson Road, Suite 202
King of Prussia, Pennsylvania 19406
Telephone: (610) 992-5881
Telecopier:
11.7 SUCCESSORS AND ASSIGNS. This Agreement and any of the rights and
_____________
VIASYS HEALTHCARE INC – the parties have executed this Agreement as of the
date first written above.
THERMO ELECTRON CORPORATION
By: /s/ Theo Melas-Kyriazi
--------------------------------------
Theo Melas-Kyriazi
Vice President and Chief Financial
Officer
VIASYS HEALTHCARE INC .
By: /s/ Richard F. Syron
--------------------------------------
Richard F. Syron
Chairman of the Board
{PAGE}
SCHEDULE 9.4(b)
(1) Operating Lease for Nicolet
(2) Agreement Between Trex Medical and Tecomet
( _____________
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