EXHIBIT 99.4
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TAX MATTERS AGREEMENT
THIS TAX MATTERS AGREEMENT (the "Agreement") is made as of the Distribution
Date (as defined in the Distribution Agreement (as defined below)) by and among
Thermo Electron Corporation, a Delaware corporation ("Thermo Electron" and,
together with its subsidiaries existing immediately following the Distribution,
the "Thermo Electron Group"), and Kadant Inc., a Delaware corporation and a
majority-owned subsidiary of Thermo Electron ("Kadant" and, together with its
subsidiaries existing immediately following the Distribution, the "Kadant
Group"). For purposes of this Agreement, Viasys Healthcare Inc. shall be deemed
to be a part of the Thermo Electron Group regardless of when the Second
Distribution (as defined below) occurs.
WHEREAS, Thermo Electron and Kadant have entered into a Plan and Agreement
of Distribution dated as of August 3, 2001 (the "Distribution Agreement"),
providing for the distribution of all of the issued and outstanding shares of
Kadant common stock owned by Thermo Electron to Thermo Electron's shareholders
in accordance with the Distribution Agreement (the "Distribution");
WHEREAS, prior to the Distribution, the Thermo Electron Group and the
Kadant Group were part of an affiliated group of corporations that filed
consolidated and combined Returns (as defined below) and of which Thermo
Electron was the common parent, within the meaning of Section 1504(a) of the
Internal Revenue Code of 1986, as amended;
WHEREAS, Thermo Electron and Kadant desire to set forth their agreement
regarding the allocation between the Thermo Electron Group and the Kadant Group
of all responsibilities, liabilities and benefits relating to or affecting Taxes
(as defined below) paid or payable by either of them for all taxable periods.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained in this Agreement, the parties hereby agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall have
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the meanings given them in the Distribution Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"Affiliate" of any person means any person, corporation, partnership
or other entity directly or indirectly controlling, controlled by or under
common control with such person.
"Code" means the Internal Revenue Code of 1986, as amended or, as the
context may require, the Internal Revenue Code applicable to the taxable year in
question.
"Distribution Agreement" has the meaning set forth in the preamble
hereto.
"Final Determination" shall mean the final resolution of liability for
any Tax for a taxable period (i) by Internal Revenue Service Form 870 or 870-AD
(or any successor forms
thereto), on the date of acceptance by or on behalf of the taxpayer, or by a
comparable form under the laws of any other jurisdiction; except that a Form 870
or 870-AD or comparable form that reserves (whether by its terms or by operation
of law) the right of the taxpayer to file a claim for refund and/or the right of
the taxing authority to assert a further deficiency shall not constitute a Final
Determination; (ii) by a decision, judgment, decree or other order by a court of
competent jurisdiction, which has become final and unappealable; (iii) by a
closing agreement or accepted offer in compromise under Section 7121 or 7122 of
the Code, or comparable agreements under the laws of other jurisdictions; (iv)
by any allowance of a refund or credit in respect of an overpayment of Tax, but
only after the expiration of all periods during which such refund may be
recovered (including by way of offset) by the Taxing Authority; or (v) by any
other final disposition, including by reason of the expiration of the applicable
statute of limitations or by mutual agreement of the parties.
"Post-Distribution Act" means any event or transaction (or the
execution of an agreement, letter of intent or option providing for a
transaction) in which Kadant participates after the Distribution and in which
any of the following occurs:
(i) Kadant transfers a material portion of its assets (other
than a transfer of assets in the ordinary course of business) within two years
following the Distribution Date;
(ii) Kadant merges with another corporation within two years
following the Distribution Date;
(iii) Within two years following the Distribution Date Kadant
discontinues a material portion of its historic business activities including
the design, manufacture, marketing and sale of stock-preparation equipment and
accessories and water management systems for the paper making and paper
recycling industries;
(iv) Within one year following the Distribution Date a material
portion of the shares of Kadant common stock distributed in the Distribution is
converted into (or redeemed or exchanged for) any other stock, any security, any
property or cash;
(v) Within two years following the Distribution Date, Kadant
issues its capital stock in one or more issuances, whether incident to a stock
offering, an acquisition transaction or otherwise, which causes the aggregate
amount of shares issued or acquired in all such transactions to represent a
greater-than-twenty-percent interest in the total issued and outstanding stock
of Kadant determined in accordance with Section 355(d)(4) of the Code as of the
date of the Distribution without Kadant having delivered to Thermo Electron an
opinion of counsel reasonably acceptable to Thermo Electron to the effect that
such Post-Distribution Act will not cause Section 355(e) of the Code to apply
with respect to the Distribution, which opinion shall be in such form and based
upon such factual representations and assumptions as may be reasonably
acceptable to Thermo Electron. For purpose of this paragraph (v), any issues of
capital stock by Kadant pursuant to the conversion of the subordinated
convertible debentures of Kadant due 2004 and outstanding on the date hereof
shall not be taken into account.
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"Post-Distribution Taxes" means any and all liability for Taxes of the
Kadant Group or the Thermo Electron Group, as appropriate, other than for Pre-
Distribution Taxes.
"Pre-Distribution Taxes" means any and all Taxes of the Thermo
Electron Group or the Kadant Group, as appropriate, for all periods that ended
on or prior to the Distribution Date. For purposes of computing the amount of
Pre-Distribution Taxes in the case of a Tax period that begins before and ends
after the Distribution Date, the amount of Taxes considered to have accrued with
respect to the portion of the Tax period that ended on the Distribution Date
shall be determined as follows:
(i) In the case of any ad valorem, personal property and real
property Taxes, an amount of such Tax for the entire Tax period multiplied by a
fraction the numerator of which is the number of days in the portion of the Tax
period ended on the Distribution Date and the denominator of which is the number
of days in the entire Tax period, provided that such allocation of Taxes shall
be appropriately adjusted to reflect any material acquisitions or dispositions
of property during the Tax period;
(ii) In the case of any withholding Tax, the amount of Taxes
required to be withheld which relates to any payment by any member of the Thermo
Electron Group or the Kadant Group on or before the Distribution Date; and
(iii) In the case of any Tax other than ad valorem, personal
property and real property Taxes or any withholding Tax, the amount that would
be payable if the relevant Tax period ended on the Distribution Date.
In the case of any credits relating to a Tax period that begins before
and ends after the Distribution Date, only those credits that would have
resulted had the relevant Tax period ended on the Distribution Date shall be
taken into account.
"Returns" means all returns, reports and information statements
(including all exhibits and schedules thereto) required to be filed with a
Taxing Authority with respect to any Taxes.
"Second Distribution" has the meaning set forth in the definition of
"Kadant-Caused Taxes".
"Tax Allocation Agreement" means that certain Tax Allocation Agreement
by and between Thermo Electron and Kadant dated as of December 28, 1991 (copy
attached).
"Taxes" means any income, alternative or add-on minimum tax, gross
income, gross receipts, sales, use, ad valorem, franchise, profits, license,
withholding, payroll, employment, environmental excise, severance, stamp,
transfer, recording occupation, premium, property, value added, windfall profit
tax, custom, duty or other tax of any kind whatsoever, together with any
interest and any penalty, addition to tax or additional amount imposed by any
Taxing Authority.
"Taxing Authority" means any governmental authority responsible for
the imposition of any Tax (domestic or foreign).
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"Thermo Electron" has the meaning set forth in the preamble hereto.
"Thermo Electron Group" has the meaning set forth in the preamble
hereto.
"Thermo Electron Tax" means any Tax for which Thermo Electron or any
member of the Thermo Electron Group is responsible under Section 2 hereof.
"Kadant" has the meaning set forth in the preamble hereto.
"Kadant Group" has the meaning set forth in the preamble hereto.
"Kadant Issue" has the meaning set forth in Section 3(a) hereof.
"Kadant Tax" means any Tax for which Kadant or any member of the
Kadant Group is responsible under Section 2 hereof.
"Kadant-Caused Taxes" means any liability for Taxes (less an amount
equal to any Taxes that would be attributable to the distribution of shares of
Kadant or Viasys described in Section 355(a)(3)(B) of the Code if the
Distribution and the Second Distribution were to otherwise qualify as tax-free
transactions under Section 355(c) of the Code) incurred by the Thermo Electron
Group or the Kadant Group arising from or attributable to any of the
transactions that are directly related to either the Distribution or to the
distribution of Viasys Healthcare Inc. ("Viasys") stock owned by Thermo Electron
to Thermo Electron's shareholders (the "Second Distribution") (including,
without limitation, the contribution and/or licensing of assets to Kadant or
Viasys by Thermo Electron, the recapitalization of Kadant or Viasys and the
Distribution or the Second Distribution itself) failing to qualify as a tax-free
transaction under Code Sections 351, 355, 361 or 368 (or any comparable
provisions of state law), but only if such failure (i) was caused (within the
meaning of clause (c) of the next sentence) by an act that occurred after the
Distribution and in which Kadant participated; (ii) was attributable (within the
meaning of clause (c) of the next sentence) to Kadant failing to undertake an
offering of at least ten-percent of its outstanding shares within twelve months
following the Distribution Date (or such later date as the IRS may indicate in a
written supplement to the private letter ruling designated as PLR 108328-00); or
(iii) was otherwise attributable (within the meaning of clause (c) of the next
sentence) to one or more of the representations contained in Section 8 hereof
failing to be true. For purposes of this definition (subject to clause (c)
hereof), (a) if any failure to so qualify occurs and Kadant has participated in
a Post-Distribution Act, such failure shall be deemed to have been caused by
Kadant's participation in the Post-Distribution Act unless established to the
contrary by clear and convincing evidence that the Post-Distribution Act did not
cause the failure to qualify as a tax-free transaction under Code Sections 351,
355, 361 or 368; (b) all transactions described in the request for ruling
submitted to the Internal Revenue Service and dated April 7, 2000 (including
supplemental information submitted in connection therewith) shall be included as
transactions considered to be directly related to the Distribution or the Second
Distribution (as appropriate); (c) the failure to qualify as a tax-free
transaction pursuant to Code Sections 351, 355, 361 and 368 shall be considered
to have been caused or attributable to an act or omission by Kadant if the
transaction would have so qualified but for the act or omission; and (d) the
qualification of a transaction as "tax-free" shall be made without regard to
taxable income or gain attributable to the distribution of shares of Kadant
described in
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Section 355(a)(3)(B) of the Code or any cash received in lieu of fractional
shares. Kadant-Caused Taxes, as defined above, shall include increases in Taxes
of the Thermo Electron Group or the Kadant Group for any period to the extent
such increases in Taxes would not have occurred but for the transactions
directly related to the Distribution or the Second Distribution failing to
qualify as a tax-free transaction under Sections 351, 355, 361 or 368 of the
Code (or comparable provisions of state law). Thus, for example, if the failure
of any of the transactions to so qualify results in additional income being
realized by the Thermo Electron Group in its tax year that includes the
Distribution or the Second Distribution, but such income is substantially offset
by operating losses or net operating loss carryovers, Kadant-Caused Taxes will
include (to the extent the other requirements of this definition are met) any
increase in Taxes realized by any member of the Thermo Electron Group in
subsequent years to the extent such increase in Taxes would not have been
realized had the loss or loss carryovers not been used in the tax year that
includes the Distribution or the Second Distribution.
"Transition Services Agreement" means that certain Transition Services
Agreement by and between Thermo Electron and Kadant dated as of August 3, 2001
(copy attached).
2. Operative Provisions.
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(a) Thermo Electron shall indemnify Kadant against and be responsible
for all Post-Distribution Taxes attributable to any member of the Thermo
Electron Group and all Pre-Distribution Taxes other than (i) Kadant-Caused Taxes
and (ii) Pre-Distribution Taxes for which Kadant or any member of the Kadant
Group was responsible under the Tax Allocation Agreement.
(b) Kadant shall indemnify Thermo Electron against and shall be
responsible for all Post-Distribution Taxes attributable to any member of the
Kadant Group, all Kadant-Caused Taxes and all Pre-Distribution Taxes for which
Kadant or any member of the Kadant Group was responsible under the Tax
Allocation Agreement.
(c) With respect to the tax year of the Thermo Electron Group that
includes the Distribution Date and the tax year of Kadant that commences
immediately following the Distribution Date, the Thermo Electron Group (which,
for this purpose only, shall include the Kadant Group) shall claim on its
federal income tax returns the benefit of (i) the graduated tax rates of Code
Section 11, (ii) the $25,000 bracket amount in Code Section 38, (iii) the
$40,000 exemption amount and the $175,000 bracket amount in Code Section 55 and
(iv) the $2,000,000 bracket amount in Code Section 59A, and neither Kadant nor
any member of the Kadant Group shall claim any of such benefits for their Tax
year that commences on the date immediately following the Distribution Date.
(d) Notwithstanding the provisions of Section 2 hereof, for all tax
years through and including 2001, Taxes imposed upon Thermo Electron or a member
of the Thermo Electron Group, or Kadant or a member of the Kadant Group, that
are determined or assessed on a separate company basis, will be the separate
liability of Thermo Electron, Kadant or such member and not subject to
allocation or sharing among other members of the Thermo Electron Group and the
Kadant Group.
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(e) For purposes of this Section 2, the determination of the
respective liabilities of the Thermo Electron Group and the Kadant Group for all
Pre-Distribution Taxes shall be made in accordance with the provisions of the
Tax Allocation Agreement consistently applied in accordance with past practice.
3. Returns; Refunds; Contest Provisions.
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(a) Thermo Electron shall have the obligation and the sole right and
full discretion to control (i) the preparation of all Returns that pertain (in
whole or in part) to Pre-Distribution Taxes (including Kadant-Caused Taxes) and
(ii) the defense, settlement or compromise of any audit, examination,
investigation, suit, action or other proceeding relating to Pre-Distribution
Taxes (including Kadant-Caused Taxes) and shall be entitled to all refunds of
any Thermo Electron Taxes; provided, however, that such preparation of Returns
and such defense, settlement or compromise of a proceeding shall be done in a
manner consistent with past practices (including Thermo Electron's fiduciary
duty to the Kadant Group as a controlling shareholder). In the event that the
proceeding referenced in clause (ii) of the preceding sentence involves an issue
that relates to Kadant Taxes (a "Kadant Issue"), Kadant shall have the right to
participate in (but not control) such proceeding with respect to the Kadant
Issue only at its own cost and expense. Notwithstanding the foregoing, in the
event that Thermo Electron decides to abandon the defense of, or settle or
compromise any claim relating solely to a Kadant Issue, Thermo Electron shall
notify Kadant of such decision and Kadant shall have ten days to notify Thermo
Electron that it assumes all liability with respect to the Kadant Taxes
attributable to such Kadant Issue under dispute and wishes to assume the defense
of such audit or other proceedings at its own expense. In the event that Thermo
Electron timely receives such notice from Kadant, it shall use all reasonable
efforts to cooperate so as to facilitate Kadant's handling of such proceedings.
(b) Except as otherwise provided in the Transition Services
Agreement, Kadant shall have the obligation and the sole right and full
discretion to control (i) the preparation of all Returns that pertain
exclusively to Post-Distribution Taxes that are Kadant Taxes and (ii) the
defense, settlement or compromise of any audit, examination, investigation,
suit, action or other proceeding relating to Post-Distribution Taxes that are
Kadant Taxes. Kadant shall be entitled to all refunds of any Kadant Taxes.
(c) Thermo Electron shall have the obligation and the sole right and
full discretion to control (i) the preparation of all Returns with respect to
Post-Distribution Taxes that are Thermo Electron Taxes and (ii) the defense,
settlement or compromise of any audit, examination, investigation, suit, action
or other proceeding relating to Post-Distribution Taxes that are Thermo Electron
Taxes.
4. Stock Options.
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(a) From and after the Distribution Date, if an employee or service
provider of any member of the Kadant Group who is not also an employee or
service provider of any member of the Thermo Electron Group exercises a stock
option to acquire stock of Thermo Electron, the parties hereto agree that Kadant
shall be entitled to any resulting Tax deduction and shall be fully responsible
for all associated Tax reporting, withholding and similar obligations.
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(b) From and after the Distribution Date, if an employee or service
provider of any member of the Thermo Electron Group who is not also an employee
or service provider of any member of the Kadant Group exercises a stock option
to acquire stock of Kadant, the parties agree that Thermo Electron shall be
entitled to any resulting Tax deduction and shall be fully responsible for all
associated Tax reporting, withholding and similar obligations.
(c) Except as provided in subsections (a) and (b) above, all
deductions, reporting and withholding obligations associated with the exercise
of a stock option shall be attributed to the respective group (i.e. Thermo
Electron Group or the Kadant Group) to which the company that issued the stock
upon exercise of the option belongs.
5. Agency.
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Kadant irrevocably designates Thermo Electron (and shall cause each
member of the Kadant Group to irrevocably designate Thermo Electron) as its
agent and attorney in fact (and shall execute any necessary powers of attorney)
for the purpose of taking any and all actions necessary or incidental to the
filing of federal income tax Returns and state unitary or combined Returns for
(i) any period during which any member of the Kadant Group or any predecessor
qualified to file a consolidated, combined, unitary or similar Return with any
member of the Thermo Electron Group and (ii) any period ending on or before the
Distribution Date. Thermo Electron shall keep Kadant reasonably informed of, and
shall reasonably consult with Kadant with respect to, all actions to be taken on
behalf of any member of the Kadant Group. Thermo Electron and Kadant will each
furnish the other any and all information which the other may reasonably request
in order to carry out the provisions of this Agreement to determine the amount
of any Tax liability.
6. Consistent Reporting.
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(a) With respect to all taxable periods ending on or prior to
December 31, 2005, Kadant, each member of the Kadant Group and any future
Affiliates thereof shall file federal income tax and state income tax Returns in
a manner consistent with the Returns filed (or to be filed) in respect of Pre-
Distribution Taxes and in a manner consistent with the form of the transactions
contemplated by the Distribution Agreement (the "Form"), including that the
Distribution qualifies under Section 355 of the Code, unless the proposed change
has no adverse impact on the Thermo Electron Group.
(b) For purposes of subsection (a) of this Section 6, to the extent
there is an inconsistency or an apparent inconsistency between the Returns
relating to Pre-Distribution Taxes (including Returns to be filed after the
Distribution Date) and the Form, Kadant shall file Returns with respect to Post-
Distribution Taxes in the manner reasonably directed by Thermo Electron.
(c) Thermo Electron and Kadant agree to contest any proposed
adjustment by any Taxing Authority that is, in the sole judgment of Thermo
Electron, inconsistent with the provisions of this Section 6 or the Form.
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7. Covenants of Kadant and Thermo Electron Relating to Actions After the
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Distribution Date.
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(a) Kadant shall, and shall cause each member of the Kadant Group to,
refrain from participating in any Post-Distribution Act without the prior
written consent of Thermo Electron.
(b) Kadant and Thermo Electron shall cooperate (and shall cause each
of their Affiliates to cooperate) fully at such time and to the extent
reasonably requested by the other party in connection with the preparation and
filing of any Return or the conduct of any audit, dispute, proceeding, suit or
action in respect of Taxes or other Tax matters. Such cooperation shall include,
without limitation, (i) the retention and provision on demand of books, records,
documentation or other information relating to any Return until the expiration
of the applicable statute of limitation (giving effect to any extension, waiver
or mitigation thereof) plus two years; (ii) the execution of any document that
may be necessary or reasonably helpful in connection with the filing of any
Return by any member of the Thermo Electron Group or the Kadant Group or in
connection with any audit, examination, investigation, suit, action or other
proceeding; and (iii) the use of the parties' reasonable best efforts to obtain
any documentation from a governmental authority or a third party that may be
necessary or helpful in connection with the foregoing.
8. Kadant Representations. Kadant hereby represents and warrants to Thermo
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Electron and each member of the Thermo Electron Group that the representations
and statements relating to Kadant, the Kadant Group or their respective
operations (and not Thermo Electron and its Shareholders) made, or to be made
(to the extent Kadant is provided the opportunity to review such future
representations and statements prior to their submission), to the Internal
Revenue Service (the "IRS") in connection with any ruling obtained, or to be
obtained, by Thermo Electron from the IRS with respect to any transaction
contemplated by the Distribution Agreement, as well as the statements contained
in this Section 8, are true and correct in all material respects on the date
hereof:
(a) To the best of Kadant's actual knowledge without inquiry, no
shares of Kadant common stock being distributed in the Distribution will be
received by a shareholder of Thermo Electron in such shareholder's capacity as a
creditor or employee or in any capacity other than that of a shareholder of
Thermo Electron.
(b) To the best of Kadant's actual knowledge without inquiry,
immediately following the Distribution, no person, group of related persons or
persons who acted in concert pursuant to a prearranged plan or arrangement will
own 50% or greater of the Thermo Electron Common Stock or the Kadant common
stock as a result of purchases of stock within five years of the Distribution
Date.
(c) Kadant has no plan or intention to issue Kadant common stock,
whether incident to a stock offering, an acquisition transaction or otherwise,
which causes the aggregate amount of Kadant common stock issued or acquired in
any such transaction to represent a fifty percent (50%) or greater interest in
the total issued and outstanding Kadant common stock within the meaning of
Section 355(d)(4) of the Code.
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(d) Kadant has no plan or intention to liquidate Kadant, to merge
with another corporation or to sell or otherwise dispose of a material portion
of its assets subsequent to the Distribution except in the ordinary course of
business.
(e) To the best of Kadant's actual knowledge without inquiry, no plan
or intention exists by the shareholders of Thermo Electron to sell, exchange,
transfer by gift or otherwise dispose of a material portion of either Thermo
Electron Common Stock or Kadant common stock held by them (in the aggregate)
subsequent to the Distribution.
(f) Following the Distribution, each of Thermo Electron and Kadant
will operate as independent corporations except that certain administrative and
other common activities of the two corporations will be undertaken by common
personnel in accordance with the Transition Services Agreement. Payments made in
connection with all continuing transactions not expressly covered by the
Transition Services Agreement between, and services provided for, each of Thermo
Electron and Kadant will be for fair market value based on terms and conditions
arrived at by the parties bargaining at arm's length.
(g) Kadant has no plan or intention to transfer or substantially
discontinue the historic business of Kadant following the Distribution.
9. Payments. All payments to be made hereunder shall be made in
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immediately available funds. Unless otherwise provided herein, any payment not
made when due hereunder shall bear interest from the due date at an annual rate
equal to the prime rate (as determined by FleetBoston Financial Corporation (or
successor organization)) plus 2%, compounded and adjusted monthly. For purposes
of this Agreement, the following payments shall be due at the following times:
(a) Payments due under Section 2 hereof shall be paid within 10 days
of the receipt of notice from the party entitled to the payment indicating the
occurrence of the later of (i) a Final Determination relating to the item or
items giving rise to the Tax for which indemnification is made and (ii) actual
payment of the Tax giving rise to the claim for indemnification.
(b) In the case of any refunds of Taxes received by a party other
than the party entitled to such refunds pursuant to Section 3 hereof, the
recipient of the refund shall pay the amount of such refund to the other party
within five days of the receipt of such refund.
10. Resolution of Certain Disputes. Disagreements between Thermo Electron
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and Kadant shall be resolved as quickly as possible and, if not resolved within
thirty days, shall be referred for binding resolution to a mutually agreeable
accounting firm as soon as practicable thereafter. In the event an accounting
firm cannot be mutually agreed upon, an accounting firm shall be chosen by lot
from among the "Big Five" accounting firms (or such other commonly acknowledged
number of preeminent accounting firms as are then in existence) other than any
such firms that are the regular accountants for Thermo Electron or Kadant;
provided, however, that at any time prior to the selection of an accounting firm
in accordance with the foregoing procedure, Thermo Electron or Kadant may elect
by providing written notice to the other to refer the dispute to an arbitrator
selected by the American Arbitration Association for binding
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arbitration in accordance with the commercial arbitration rules of such
association. A dispute shall be deemed to exist to the extent one party does not
affirmatively agree with the position held by the other party. The parties shall
be required to use their best efforts to resolve any dispute as quickly as
possible. The costs and fees of the accounting firm or arbitrator, as
applicable, shall be divided equally except to the extent a party's position is
unreasonable (as determined by the accounting firm or arbitrator, as
applicable), in which case such party shall bear all expenses (including without
limitation such fees) allocable to such position and the dispute relating
thereto.
11. Costs and Expenses. Except as expressly set forth in this Agreement,
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each party shall bear its own costs and expenses incurred pursuant to this
Agreement regardless of the beneficiary of the items or services relating to
such costs and expenses.
12. Termination and Survival. Notwithstanding anything in this Agreement
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to the contrary, this Agreement shall remain in effect and its provisions shall
survive for the full period of all applicable statutes of limitation relating to
the assessment of Taxes (giving effect to any extension, waiver or mitigation
thereof) plus two years.
13. Amendments; Limitation on Waivers.
---------------------------------
(a) Any provision of this Agreement may be amended if, and only if,
such amendment is in writing and signed by Thermo Electron and Kadant.
(b) The provisions of this Agreement may be waived only if the waiver
is in writing and signed by the party making the waiver. No delay or omission in
exercising any right under this Agreement will operate as a waiver of the right
on any further occasion. No waiver of any particular provision of this Agreement
will be treated as a waiver of any other provision, and no waiver of any right
will be deemed a continuing waiver of the same right with respect to subsequent
occurrences that give rise to such right. All rights given by this Agreement are
cumulative to other rights provided for in this Agreement and to any other
rights available under applicable law.
14. Governing Law and Interpretation. This Agreement shall be governed by,
--------------------------------
interpreted and enforced in accordance with the laws of the Commonwealth of
Massachusetts (regardless of the laws that might be applicable under conflict of
law principles).
15. Confidentiality. Each party shall hold and shall cause its consultants
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and advisors to hold in strict confidence, unless compelled to disclose by
judicial or administrative process or, in the opinion of its counsel, by other
requirements of law, all information (other than any such information relating
solely to the business or affairs of such party) concerning the other parties
hereto furnished it by such other party or its representatives pursuant to this
Agreement (except to the extent that such information can be shown to have been
(a) in the public domain through no fault of the party to which it was furnished
or (b) later lawfully acquired from other sources by the party to which it was
furnished), and each party shall not release or disclose such information to any
other person, except its auditors, attorneys, financial advisors, bankers and
other consultants and advisors who shall be advised of the provisions of this
Section 15. Each party shall be deemed to have satisfied its obligation to hold
confidential information concerning
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or supplied by the other party if it exercises the same care as it takes to
preserve confidentiality for its own similar information.
16. Counterparts. This Agreement may be executed in two counterparts, each
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of which shall be deemed to be an original, but both of which together shall
constitute one and the same instrument.
17. Assignments and Third-Party Benefit. This Agreement and the terms and
-----------------------------------
provisions hereof shall be binding upon, and shall inure to the benefit of the
parties hereto and their respective successors and assigns.
18. Severability. If any term, provision, condition or covenant of this
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Agreement, or the application thereof to any party or circumstance, shall be
held by a court of competent jurisdiction to be invalid, unenforceable or void,
the remainder of this instrument, or the application of such term, provision,
condition or covenant to persons or circumstances other than those as to whom or
to which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
19. Merger of Prior Agreements.
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(a) This Agreement contains all of the terms and provisions and
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior written, oral or implied understandings,
representations and agreements of the parties relating to the subject matter of
this Agreement, including the Tax Allocation Agreement. Without limiting the
foregoing, the parties acknowledge and agree that in the event of any conflict
or inconsistency between the provisions of this Agreement and the provisions of
the Distribution Agreement or the Transition Services Agreement, the provisions
of this Agreement shall control and to such extent shall be deemed to supersede
such conflicting provisions under the Distribution Agreement or the Transition
Services Agreement.
(b) The parties acknowledge that pursuant hereto, any and all
existing tax sharing agreements or arrangements binding or benefiting Kadant,
including the Tax Allocation Agreement, shall be terminated as of the close of
business on the Distribution Date, and that after the Distribution Date this
Agreement shall constitute the sole tax sharing agreement between Thermo
Electron and Kadant. For periods prior to the Distribution Date, the Tax
Allocation Agreement shall continue in effect except to the extent it is
inconsistent with the terms of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
Thermo Electron Corporation
By: /s/ R.F. Syron
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Title: Chairman and Chief Executive Officer
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Kadant Inc.
By: /s/ William A. Rainville
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Title: President and Chief Executive Officer
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