Exhibit 10.9


 


VIASYS HEALTHCARE INC.


 


CHANGE IN CONTROL EXECUTIVE RETENTION AGREEMENT


 


THIS AGREEMENT by and between VIASYS Healthcare Inc.,
a Delaware corporation (the “Company”), and Scott Hurley (the “Executive”) made
and entered into as of May 26, 2006 (the “Restatement Effective Date”).


 


WHEREAS, the Company and the Executive previously
entered into a Change in Control Executive Retention Agreement dated as of September 26,
2005 (the “Original Agreement”); and


 


WHEREAS, the Company and the Executive desire to amend
and restate the Original Agreement as set forth herein; and


 


WHEREAS, this Agreement will replace and supersede all
prior severance agreements between the Executive and the Company or its
subsidiaries, including, without limitation, the Original Agreement, the portion
of the letter from the Company to the Executive, dated March 10, 2005,
that relates to severance payments (the “Offer Letter Severance Commitment”)
and any benefits payable to the Executive under the VIASYS Healthcare Inc.
Change in Control Severance Plan (the “Change in Control Plan”).


 


NOW, THEREFORE, as an inducement for and in
consideration of the Executive’s 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 1.2).


 


1.             KEY
DEFINITIONS.


 


As used herein, the
following terms shall have the following respective meanings:


 


1.1         “CAUSE”
means (i) repeated failure to comply with reasonable directives of
relevant senior officers, (ii) commission of a felony that is materially
detrimental to the Company or its successor organization, or (iii) continued
gross neglect of the Executive’s duties with the Company or its successor
organization (other than as a result of physical or mental incapacity or
illness).


 


1.2         “CHANGE
IN CONTROL” means an event or occurrence set forth in any one or more of
subsections (a) through (d) below (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) forty percent (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, or


 


(ii)           any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company;


 


(b)           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 execution
of this Agreement 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;


 


(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 fifty percent (50%) 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); or


 


(d)           approval
by the stockholders of the Company of a complete liquidation or dissolution of
the Company.


 


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1.3         “CHANGE
IN CONTROL DATE” means the date on which a Change in Control is consummated.


 


2.             LENGTH
OF AGREEMENT. This Agreement, and all rights and obligations of the parties
hereunder, shall take effect upon the Restatement Effective Date and shall
expire upon the first to occur of (a) the date that is twelve (12) months
after the Change in Control Date, if the Executive is still employed by the
Company or its successor organization as of such later date, or (b) the
fulfillment by the Company or its successor organization of all of its
obligations under Section 4 if the Executive’s employment is terminated by
the Company or its successor organization without Cause within twelve (12)
months following the Change in Control Date.


 


3.             NOT
AN EMPLOYMENT CONTRACT. The Executive acknowledges that this Agreement does not
constitute a contract of employment or impose on the Company or its successor
organization any obligation to retain the Executive as an employee, and that
this Agreement does not prevent the Executive from terminating employment at
any time.


 


4.             BENEFITS
TO EXECUTIVE.


 


4.1         SEVERANCE.
If the Executive’s employment is terminated by the Company or its successor
organization without Cause upon or within twelve (12) months following a Change
in Control of the Company, the Executive shall be entitled to the following
benefits:


 


(a)           an
amount equal to the sum of (i) twelve (12) months of the Executive’s then
current base pay and (ii) the Executive’s target bonus under the VIASYS
Healthcare Inc. Management Incentive Plan for the year of termination, payable
by the Company or its successor organization in a lump sum within sixty (60)
days after the Executive’s date of termination, and


 


(b)           continued
participation, at the expense of the Company (or its successor organization),
in all medical and dental insurance plans in which the Executive and the
Executive’s family were participating on the Executive’s date of termination
until the earlier of (A) twelve (12) months following the Executive’s date
of termination or (B) the date on which the Executive receives
substantially equivalent coverage and benefits under the plans of a subsequent
employer.


 


Base
pay shall mean the Executive’s rate of wages or salary on the date of
termination of employment, excluding all extra pay such as incentive bonuses,
car allowances or other allowances. Severance benefits shall not be considered
compensation or continuing employment for purposes of determining benefits that
are provided under any plans maintained by the Company or its successor
organization, including, without limitation, the Company’s or its successor
organization’s retirement plan(s) and equity compensation plan(s).


 


4.2         OTHER
BENEFITS. To the extent not previously paid or provided, the Executive or the
Executive’s estate or beneficiaries, as the case may be, shall also be


 


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entitled to the balance
of any base pay or incentive awards due the Executive but not yet paid
(including, without limitation, awards due for performance periods that have
been completed, but have not yet been paid), any vacation pay accrued but not
yet paid, any expense reimbursements due the Executive, and other benefits, if
any, in accordance with applicable plans or programs of or contracts or agreements
of the Executive with the Company. In addition, unless indicated otherwise in
this Agreement, the treatment of any options granted to the Executive shall be
governed by the terms of the VIASYS Equity Incentive Plan or other relevant
equity compensation plan or any associated stock option agreement.


 


4.3         MITIGATION.
The Executive shall not be required to mitigate the amount of any payment
provided in this Section 4 by seeking other employment or otherwise.
Further, the amount of any payment provided in this Section 4 shall not be
reduced by any compensation earned by the Executive as a result of employment
by another employer or by retirement benefits.


 


5.             TERMINATION
AGREEMENT AND RELEASE. The payment to the Executive under Section 4 shall
be conditioned upon the Executive’s execution of an agreement not to disparage
the Company or its successor organization, or otherwise take any action that
could reasonably be expected to adversely affect the reputation of the Company
or its successor organization, and generally to release and waive claims
against the Company or its successor organization, such agreement to be in a form satisfactory
to the Company or its successor organization in its sole discretion, within ten
(10) business days of the Executive’s date of termination, or within such
longer period required by law for enforceability of the agreement and release. The
payment under Section 4 of this Agreement shall not become due until such
time as the Executive has executed the agreement and release referred to in the
previous sentence. In addition, the Executive’s right to payment under this
Agreement shall cease upon the Executive’s rescission or material breach of the
agreement.


 


6.             DISPUTES.
Any disputes arising under or in connection with this Agreement shall be
resolved by binding arbitration, to be held in Philadelphia, Pennsylvania, in
accordance with the rules and procedures of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof.


 


7.             SUCCESSORS.


 


7.1         SUCCESSOR
TO COMPANY. The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company expressly to assume
and agree to perform this Agreement.


 


7.2         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 the


 


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Executive’s 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.


 


8.             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 or
its successor organization, at 227 Washington Street, Suite 200,
Conshohocken, PA 19428, Attn: General Counsel, and to the Executive at the
Executive’s principal residence as currently reflected on the Company’s or its
successor organization’s records (or to such other address as either the
Company or its successor organization, 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.


 


9.             MISCELLANEOUS.


 


9.1         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.


 


9.2         GOVERNING
LAW. The validity, interpretation, construction and performance of this
Agreement shall be governed by the internal laws of the Commonwealth of
Pennsylvania, without regard to conflicts of law principles.


 


9.3         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 or its successor
organization shall be deemed a waiver of that or any other provision at any
subsequent time.


 


9.4         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.


 


9.5         TAX
WITHHOLDING. Any payments provided for hereunder shall be paid net of any
applicable tax withholding required under federal, state or local law.


 


9.6         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


 


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party hereto in respect
of the subject matter contained herein, including, without limitation, the
Original Agreement, the Offer Letter Severance Commitment and the Change in
Control Plan; and any prior agreement of the parties hereto in respect of the
subject matter contained herein, including, without limitation, the Original
Agreement, the Offer Letter Severance Commitment and the Executive’s
participation in the Change in Control Plan, is hereby terminated and cancelled.


 


9.7         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.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Randy H. Thurman

  	
   

  
	
   

  	
  Name: Randy H.
  Thurman

  
	
   

  	
  Title: Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  /s/  Scott W. Hurley

  	
   

  
	
   

  	
  Scott Hurley

  
					



 


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