Exhibit 10.2


 


VIASYS
HEALTHCARE INC.


AMENDED
AND RESTATED


EMPLOYMENT
AGREEMENT


 


THIS AGREEMENT is
made and entered into as of the 26th day of May 2006 (the “Restatement
Effective Date”), by and among VIASYS Healthcare Inc., a Delaware corporation
(together with its successors and assigns permitted under this Agreement, the “Company”),
and Matthew M. Bennett (the “Executive”).


 


W I T N E S S E T H :


 


WHEREAS, the
Company previously entered into an employment agreement dated as of October 20,
2003, with the Executive whereby the Executive commenced employment with the
Company (the “Original Agreement”);


 


WHEREAS, the
parties entered into an employment agreement (the “Restated Agreement”) which
amended and restated the Original Agreement as of November 29, 2004;


 


WHEREAS, the
Company desires that the Executive continue to be employed by the Company and
the Executive is willing to continue to be employed by the Company;


 


WHEREAS, effective
as of the Restatement Effective Date, the Company and the Executive now desire
to amend and restate the Restated Agreement as set forth herein.


 


NOW, THEREFORE, in
consideration of the premises and mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
mutually acknowledged, the Company and the Executive hereby agree as follows:


 


1.                                       DEFINITIONS.


 


(a)           “Affiliate”
means a person or other entity that directly or indirectly controls, is
controlled by, or is under common control with the person or other entity
specified.


 


(b)           “Base
Salary” means the salary provided for in Section 4
or any increased salary granted to the Executive pursuant thereto.


 


(c)           “Board”
means the Board of Directors of the Company.


 


(d)           “Cause”
means the occurrence of any one or more of the following events:


 


(i)            the Executive’s
willful and repeated failure to comply with the directives of the Board;


 


(ii)           the Executive’s
conviction of a felony or any crime involving moral turpitude; or


 


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(iii)          the Executive’s willful
and continued gross neglect of his duties with the Company (other than any such
occurrence resulting from incapacity due to physical or mental illness);


 


provided,
however, that, with respect to events described in subsection (i) or (iii), (A)
the Executive must be provided with a written demand by the Board which
specifically identifies the manner in which the Executive is considered to have
breached his obligation and providing the Executive with at least a thirty (30)
calendar day period in which to cure the breach, if the breach is curable; and
(B) following such event, the Executive must receive a Notice of Termination
for Cause from the Company indicating that the majority of the outside
directors of the Board has made a good faith determination that the Executive
has engaged in conduct that constitutes Cause. 
For purposes of this Section 1(d), no act or failure to act, on the part
of the Executive, shall be considered willful unless it is done, or omitted to
be done, by him in bad faith and without a reasonable belief that his action or
omission was in the best interests of the Company.


 


(e)           “Change
in Control” means an event or occurrence set forth in any one or more of
subsections (i) through (iv) 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):


 


(i)            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 (i), the following acquisitions
shall not constitute a Change in Control:


 


(1)                                  any
acquisition by the Company;


 


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


 


(3)                                  any
acquisition by any corporation pursuant to a transaction that complies with
clauses (A) and (B) of subsection (iii) of this Section 1(e);


 


(ii)           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


 


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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;


 


(iii)          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: (A)
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) (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 (B) 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, forty percent (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


 


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


 


(f)            “Change
in Control Date” means the first date during the Employment Term on which a
Change in Control occurs.


 


(g)           “Code”
means the Internal Revenue Code of 1986, as amended.


 


(h)           “Disability”
or “Disabled” means the Executive’s inability to substantially perform his
duties and responsibilities under this Agreement due to physical or mental
incapacity, as determined by a medical doctor selected by the Company and the
Executive. If the Parties cannot agree on a medical doctor for such purpose,
each Party shall select one medical doctor and such doctors will jointly select
a third medical doctor who shall be the approved medical doctor for such
purpose.


 


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(i)            “Equity
Grant” means any compensatory grant of Stock, options with respect to Stock,
restricted Stock, Stock appreciation rights or any other compensatory grant
(whether or not such grant is payable in stock) the value of which is
determined with reference to Stock valuation.


 


(j)            “Good
Reason” means,


 


(i)            other than in
connection with a Change in Control, the occurrence, without the Executive’s
written consent, of any of the events or circumstances set forth in clauses (A)
through (E) below:


 


(A)                              the
failure of the Company to provide Executive with aggregate compensation (Base
Salary and long-term and short-term incentive compensation) or aggregate
benefits that are at least equal (in terms of benefit levels and reward opportunities)
to those provided by the Company to Executive immediately before the change;
provided, however, that a change in the compensation or benefits for all
executives of the Company, in which Executive is treated similarly as all other
executives of a comparable responsibility level, shall not constitute Good
Reason under this Agreement;


 


(B)                                the
failure to elect or reelect the Executive to the position of Executive Vice
President, General Counsel and Business Development and Secretary of the
Company or the removal of the Executive from such position (other than due to a
termination of his employment for Cause, without Cause, or as a result of
Disability, death or the Executive’s resignation without Good Reason);


 


(C)                                a
significant change in the Executive’s duties or responsibilities (including
reporting responsibilities) that is inconsistent with the Executive’s
experience, training and skills and represents a substantial diminution of the
Executive’s position and responsibilities in effect immediately prior thereto;


 


(D)                               a
change in the reporting structure so that the Executive reports to a person other
than the Chief Executive Officer; or


 


(E)                                 the
relocation of the offices of the Company at which Executive is principally
located to a location that is more than fifty (50) miles from the location of
such offices immediately prior to the relocation, or the Company’s requiring
the Executive to be based anywhere other than such offices, except for required
travel on the Company’s business to an extent substantially consistent with the
Executive’s business travel obligations at the date of this Agreement.


 


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(ii)           in connection with a
Change in Control, 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 Termination Date specified in the
Notice of Termination 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).  The Executive’s right to terminate his
employment for Good Reason under this subsection (ii) shall not be affected by
the Executive’s incapacity due to physical or mental illness.


 


(A)                              The
assignment to the Executive of duties inconsistent in any material respect with
the Executive’s position (including status, offices, the title of Executive
Vice President, General Counsel and Business Development and Secretary of the
Company and reporting requirements), authority or responsibilities in effect
immediately prior to the earliest to occur of (1) the Change in Control Date,
(2) the date of the execution by the Company of the initial written agreement
or instrument providing for the Change in Control or (3) 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 aggregate compensation (base salary and long-term
and short-term cash incentive compensation) or aggregate benefits 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, dental 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)                               the
relocation of the offices of the Company at which Executive is principally
located to a location that is more than fifty (50) miles from the location of
such offices immediately prior to the relocation, or the Company’s requiring
the Executive to be based anywhere other than such offices, except for required
travel on the Company’s business to an extent substantially consistent with the
Executive’s business travel obligations prior to the Change of Control;


 


(E)                                 the
failure of the Company to obtain the agreement from any successor to the
Company to assume and agree to perform this Agreement;


 


(F)                                 a
purported termination of the Executive’s employment which is not effected
pursuant to a Notice of Termination satisfying the requirements of Section 1(k);
or


 


(G)                                any
failure of the Company to pay or provide to the Executive any portion of the
Executive’s compensation or benefits then due under any Benefit Plan within
seven days of the date of receipt by the Company of notice that such
compensation or benefits are due, or any material breach by the Company of this
Agreement or any employment agreement with the Executive.


 


(k)           
“Notice of Termination” means a written notice from one party to the other
party hereto given in accordance with Section 27, terminating the Executive’s
employment hereunder.  Any Notice of
Termination shall (i) indicate the specific termination provision hereunder relied
on by the party giving such notice and (ii) to the extent applicable, set forth
in reasonable detail the facts and circumstances providing a basis for
termination of the Executive’s employment under the provision so
indicated.  The failure by the Executive
or the Company to set forth any fact or circumstance that 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 his or
its respective rights hereunder.  Any
Notice of Termination for (x) Cause given by the Company must be given within
ninety (90) days from the Company becoming aware of the events or circumstances
that constitute Cause and (y) Good Reason given by the Executive must be given
within thirty (30) days from the Executive becoming aware of the events and
circumstances that constitute Good Reason.


 


(l)            “Stock”
means the common stock, $0.01 par value per share, of the Company.


 


(m)          “Termination
Date” means, with respect to any termination of the Executive’s employment
hereunder, the effective date of such termination pursuant to Section 9.


 


2.                                       EMPLOYMENT
TERM.


 


The Executive’s
employment under the Restated Agreement commenced on November 29, 2004 and
continued until the Restatement Effective Date, on which date the terms of this


 


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restated Agreement became effective. 
This restated Agreement shall have an initial two-year term commencing
on the Restatement Effective Date (the “Initial Employment Term”).  In addition, the term of this Agreement shall
automatically renew for periods of two years (each an “Extension Term”) unless
either party gives written notice to the other party, at least ninety (90) days
prior to the end of the Initial Employment Term or at least ninety (90) days
prior to the end of the relevant Extension Term, that the Agreement shall not
be further extended. The period commencing on the Restatement Effective Date
and ending on the date on which the term of the Executive’s employment under
the Agreement shall terminate is hereinafter referred to as the “Employment
Term.”


 


3.             POSITION,
DUTIES AND RESPONSIBILITIES.


 


(a)           The
Executive is currently employed as the Executive Vice President, General
Counsel and Business Development and Secretary of the Company and the Executive
has been assigned and shall be assigned such duties and responsibilities as are
reasonably consistent with such positions and such other duties and
responsibilities as the Board from time to time deems appropriate.


 


(b)           During
the Employment Term, the Executive shall devote his entire business time,
attention and energies to the business and interest of the Company in performing
his duties and responsibilities under this Agreement, and, to that end, the
Executive shall not serve on the board of directors of other corporations or
entities without the prior approval of the Board in each case; provided that such
positions do not materially interfere with the proper performance of the
Executive’s duties and responsibilities as set forth in Section 3.


 


(c)           Notwithstanding
anything contained in Section 3(b) to the contrary,
nothing herein shall preclude the Executive from (i) serving on the boards of
directors of a reasonable number of trade associations and/or charitable
organizations, (ii) engaging in charitable activities and community affairs,
and (iii) managing his personal investments and affairs, provided, that such
activities do not materially interfere with the proper performance of his
duties and responsibilities as set forth in Section 3.


 


(d)           The
Executive, in carrying out his duties and responsibilities under this
Agreement, shall report directly to the Chief Executive Officer of the Company.


 


4.                                       BASE
SALARY.


 


The Executive
shall be paid an annualized base salary, payable in accordance with the regular
payroll practices of the Company, of $270,000, effective as of March 1, 2006,
which amount may be increased from time to time in the discretion of the Board;
provided, however, that once such amount is increased, it may not be decreased
except in the case of a decrease in compensation of all executives of the
Company, in which the Executive is treated similarly as all other executives of
a comparable responsibility level.


 


5.                                       ANNUAL
CASH INCENTIVE AWARD.


 


During the Employment Term, the Executive shall be entitled to
participate in all long-term and short-term incentive programs established by
the Company for its senior level


 


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executives generally, including, without
limitation, the VIASYS Healthcare Inc. Management Incentive Plan.  Specifically, the Executive shall be entitled
to participate in the annual cash incentive program of the Company.  Under such program, the Executive shall be
eligible to receive an annual bonus targeted at 50% of the Executive’s annual
base pay, or such higher percentage as the Board may, in its discretion,
determine.  The Board shall also have
similar discretion to determine any Pro-Rated Annual Bonus pursuant to Section
10(a)(ii), 10(b)(iii), 10(d)(ii) and 10(g)(ii). 
The target bonus shall be subject to certain conditions, including
without limitation multipliers, that are consistent with the annual bonus plan
applicable to other senior executives of the Company.


 


6.                                       EMPLOYEE
BENEFIT PROGRAMS.


 


During the
Employment Term, the Executive shall be entitled to participate in all employee
pension and welfare benefit plans and programs made available to the Company’s
senior level executives or to its employees generally, as such plans or
programs may be in effect from time to time, including, without limitation,
pension, profit sharing, savings and other retirement plans or programs,
medical, dental, hospitalization, short-term and long-term disability and life
insurance plans, accidental death and dismemberment protection, travel accident
insurance, and any other pension or retirement plans or programs and any other
employee welfare benefit plans or programs that may be sponsored by the Company
from time to time, including without limitation any plans that supplement the
above-listed types of plans or programs, whether funded or unfunded.  The Executive shall be entitled to vacation
and sick leave in accordance with the Company’s vacation, holiday and other pay
for time not worked policies on a basis no less favorable than that which is
authorized for the Company’s senior-level executives.


 


7.                                       PERQUISITES.


 


During the
Employment Term, the Executive shall be entitled to participate in all of the
Company’s executive perquisites in accordance with the terms and conditions of
such arrangements as are in effect from time to time for the Company’s
senior-level executives.


 


8.             REIMBURSEMENT
OF BUSINESS AND OTHER EXPENSES.


 


The Executive is
authorized to incur reasonable expenses in carrying out his duties and
responsibilities under this Agreement, and the Company shall promptly reimburse
him for such expenses, subject to documentation in accordance with the Company’s
policy.


 


9.                                       TERMINATION
OF EMPLOYMENT.


 


The Executive’s
employment hereunder shall terminate effective immediately upon the earliest to
occur of the following events:


 


(a)           death
of the Executive;


 


(b)           receipt
by either party of a Notice of Termination for Disability from the other party,
but in any event not until the Executive is determined to be disabled in
accordance with Section 1(h);


 


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(c)           the
31st day following receipt by the Executive of the Notice of Termination for
Cause from the Company indicating that a majority of the outside directors of
the Board has made a good faith determination that the Executive has engaged in
conduct that constitutes Cause; provided, that (i) if such action or failure to
act is curable, the Executive fails to correct the action or failure to act
that constitutes the grounds for Cause in a manner reasonably satisfactory to
the Board within the thirty (30) day period following receipt by the Executive
of the Notice of Termination for Cause; and (ii) the Executive together with
his counsel, shall have had an opportunity to be heard by the Board regarding
the conduct in question.  Immediately
upon receipt by the Executive of a Notice of Termination for Cause from the
Company, the Executive shall take a mandatory paid leave of absence from the
Company for such thirty (30) day period; provided, however, that the leave of
absence shall terminate within two (2) days of the cure if such cure is
effected prior to the end of the thirty-day period;


 


(d)           the
31st day following receipt by the Company of a Notice of Termination for Good
Reason from the Executive if the Company fails to cure within the thirty (30)
day period following the Company’s receipt of such written notice;


 


(e)           the
31st day following receipt by the Executive of a Notice of Termination Without
Cause from the Company;


 


(f)            the
31st day following receipt by the Company of a Notice of Termination Without
Good Reason from the Executive; and


 


(g)           the
last day of the Employment Term following expiration of the Employment Term
without renewal by the Company.


 


10.           RIGHTS AND
REMEDIES UPON TERMINATION OF EMPLOYMENT.


 


(a)           TERMINATION
DUE TO DEATH.  In the event that the
Executive’s employment is terminated due to his death, his estate or his
beneficiaries, as the case may be, shall be entitled to the following benefits:


 


(i)            the Executive’s then
current Base Salary through the Termination Date, which shall be payable in a
lump sum within thirty (30) days of the Termination Date;


 


(ii)           an annual cash
incentive bonus award for the year in which the termination occurs, pro-rated
through the Termination Date, determined in accordance with the annual bonus
plan and the provisions of Section 5, which award, if and to the extent so
determined to be owed, shall be payable when long-term and short-term incentive
awards, as applicable, are normally paid to comparable executives (the “Pro-Rated
Annual Bonus”); and


 


(iii)          each Equity Grant held
by the Executive, whether or not issued under this Employment Agreement, that
has not vested prior to that date shall immediately vest (and all relevant
vesting restrictions shall lapse) and to the extent subject to an exercise
period, shall remain exercisable until one year following the Termination Date (but
in no event beyond the end of each such Grant’s otherwise applicable exercise period).


 


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(b)           TERMINATION
DUE TO DISABILITY.  In the event that the
Executive’s employment is terminated by either party due to his Disability, he
shall be entitled to the following benefits:


 


(i)            disability benefits in
accordance with the long-term disability (“LTD”) program then in effect for
comparable executives of the Company;


 


(ii)           the Executive’s then
current Base Salary through the end of the LTD elimination period, which shall
be payable in a lump sum within thirty (30) days of the Termination Date;


 


(iii)          a Pro-Rated Annual
Bonus;


 


(iv)          each Equity Grant held
by the Executive, whether or not issued under this Employment Agreement, that
has not vested prior to that date shall immediately vest (and all relevant
vesting restrictions shall lapse) and to the extent subject to an exercise
period, shall remain exercisable until one year following the Termination Date
(but in no event beyond the end of each such Grant’s otherwise applicable
exercise period); and


 


(v)           continued participation
at the Company’s expense in all Benefit Plans provided to the Executive and the
Executive’s family on the Termination Date for a period of eighteen (18) months
following the Termination Date; provided, however, that if the Executive
becomes reemployed with another employer and is eligible to receive a
particular type of benefit (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
that particular benefit to the Executive and his family.


 


(c)           TERMINATION
BY THE COMPANY FOR CAUSE.  In the event
that the Company terminates the Executive’s employment for Cause:


 


(i)            the Executive shall be
entitled to receive his current Base Salary through the Termination Date, which
shall be payable in a lump sum within thirty (30) days of the Termination Date;


 


(ii)           each Equity Grant held
by the Executive, whether or not issued under this Employment Agreement,
(A)  that has not vested prior to that
date shall immediately cease to vest and shall be forfeited to the Company and
cancelled, and (B)  that has vested prior
to or on the Termination Date, to the extent subject to an exercise period,
shall remain exercisable for ninety (90) days following the Termination Date
(but in no event beyond the end of each such Grant’s otherwise applicable
exercise period); and


 


(iii)          the Executive shall not
be entitled to any benefits, severance or other compensation.


 


(d)           TERMINATION
FOR GOOD REASON.  In the event the
Executive’s employment is terminated by the Executive for Good Reason other
than in connection with a


 


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Change in Control pursuant to Section 10(i), the
Executive shall be entitled to the following benefits:


 


(i)            the Executive’s then
current Base Salary through the Termination Date, which shall be payable in a
lump sum within thirty (30) days of the Termination Date;


 


(ii)           a Pro-Rated Annual
Bonus;


 


(iii)          an amount equal to 150%
of the sum of (i) the Executive’s then current Base Salary and (ii) the most
recent short term and long term cash incentive award paid or awarded to the
Executive pursuant to Section 5, payable in a lump sum within ninety (90) days
of the Termination Date;


 


(iv)          each Equity Grant held
by the Executive, whether or not issued under this Employment Agreement, that
has not vested prior to that date shall immediately vest (and all relevant
vesting restrictions shall lapse) and to the extent subject to an exercise
period, shall remain exercisable until one year following the Termination Date or
such shorter period of time necessary to ensure that the Equity Award does not
become subject to the provisions of Code section 409A (but in no event beyond
the end of each such Grant’s otherwise applicable exercise period); and


 


(v)           continued participation
at the Company’s expense in all Benefit Plans provided to the Executive and the
Executive’s family on the Termination Date for a period of eighteen (18) months
following the Termination Date; provided, however, that if the Executive
becomes reemployed with another employer and is eligible to receive a particular
type of benefit (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 that
particular benefit to the Executive and his family.


 


(e)           TERMINATION
WITHOUT GOOD REASON.  In the event of a
termination of employment by the Executive on his own initiative, other than
due to (A) death, (B) Disability, (C) Good Reason,
(D) the expiration of the then current Employment Term, (E) a notice from the
Company to the Executive of its intent not to extend the Employment Term; or
(F) in connection with a Change in Control:


 


(i)            the Executive shall be
entitled to receive his current Base Salary through the Termination Date, which
shall be payable in a lump sum within thirty (30) days of the Termination Date;


 


(ii)           each Equity Grant held
by the Executive, whether or not issued under this Employment Agreement, (A)
that has not vested prior to that date shall immediately cease to vest and
shall be forfeited to the Company and cancelled, and (B) that has vested prior
to the Termination Date, to the extent subject to an exercise period, shall
remain exercisable until three months following the Termination Date (but in no
event beyond the end of each such Grant’s otherwise applicable exercise
period); and


 


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(iii)          the Executive shall not
be entitled to any benefits, severance or other compensation.


 


(f)            TERMINATION
WITHOUT CAUSE.  A termination of the
Executive’s employment by the Company, other than due to (A) death, (B)
Disability, (C) Cause, (D) the expiration of the then current Employment Term,
(E) a notice from one party to the other of its intent not to extend the Employment
Term or (F) in connection with a Change in Control,  shall have the same consequences as provided
in Section 10(d) for a termination of the Executive’s employment by the
Executive for Good Reason.


 


(g)           EXPIRATION
OF EMPLOYMENT TERM.  In the event that
Executive’s employment with the Company ceases due to expiration of the
Employment Term as a result of the Company’s notification to the Executive of
the non-renewal of the Employment Term, the Executive shall be entitled to:


 


(i)            his current Base
Salary through the Termination Date, which shall be payable in a lump sum
within thirty (30) days of the Termination Date;


 


(ii)           a Pro-Rated Annual
Bonus;


 


(iii)          a severance payment
equal to 50% of his then current Base Salary payable in twelve (12) equal
monthly installments commencing with the calendar month immediately following
the calendar month in which he separates from the service of the Company; and


 


(iv)          continued participation
at the Company’s expense in all Benefit Plans provided to the Executive and the
Executive’s family on the Termination Date for a period of twelve (12) months
following the Termination Date; provided, however, that if the Executive
becomes reemployed with another employer and is eligible to receive a
particular type of benefit (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 that particular benefit to the Executive and his family.


 


(h)           OTHER
TERMINATION BENEFITS.  In the case of any
of the foregoing terminations, to the extent not previously paid or provided or
otherwise contrary to the terms and conditions of this Agreement, the Executive
or his estate or beneficiaries, as the case may be, shall also be entitled to
the balance of any 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 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.


 


(i)            TERMINATION
IN CONNECTION WITH A CHANGE IN CONTROL. 
Notwithstanding anything to the contrary in this Agreement, in the event
that (A) a Change of Control occurs; and (B) the Executive’s employment with
the Company is terminated by the Company without Cause or by the Executive with
Good Reason, in each case within eighteen (18) months following a Change in
Control, the Executive shall be entitled to the following


 


12

















 


payments and benefits, with any cash payments to be
made in a lump sum within thirty (30) days following the Termination Date:


 


(i)            the sum of (A) the
Executive’s Base Salary through the Termination Date, (B) the product of (x)
the annual bonus paid or payable (including without limitation 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 Termination Date, 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”);


 


(ii)           an amount equal to (A)
one and one-half (1.5) 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;


 


(iii)          for eighteen months
after the Termination Date, 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 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 benefit (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 that particular benefit to the Executive and
his family; and


 


(iv)          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.


 


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 Termination Date.


 


(j)            OUTPLACEMENT
SERVICES.  In the event that the
Executive’s employment is terminated in accordance with Section 10 without
Cause or for Good Reason, the Company shall provide outplacement services
through one or more outside firms of the Executive’s choosing up


 


13

















 


to an aggregate of $20,000, with such services to
extend until the earlier of (i) twelve (12) months following the Termination
Date or (ii) the date on which the Executive secures full time employment, or,
at the Executive’s election, the Company shall pay the Executive $20,000 in
cash in lieu of such coverage with such payment to be made within thirty (30)
days of the Termination Date.


 


(k)           NATURE
OF PAYMENTS.  Any amounts due under this
Section 10 are in the nature of severance payments
considered to be reasonable by the Company and are not in the nature of a
penalty.


 


(l)            NO
MITIGATION; NO OFFSET.  The Executive
shall not be required to mitigate the amount of any payment or benefit provided
in this Section 10 by seeking other employment or
otherwise.  Further, except as provided
in this Section 10, the amount of any payment or benefits provided for in this
Section 10 shall not be reduced by any compensation earned by the Executive as
a result of employment by another employer or be offset by any amount claimed
to be owed by the Executive to the Company.


 


(m)          RELEASE. 
To the fullest extent permitted by applicable law, the Company’s obligation
to pay or provide any benefits to the Executive under this Agreement shall be
subject to the requirement that he execute (and not breach or rescind) a
comprehensive release in favor of the Company, its officers, directors and
related parties, with such release to be in such form as the Company may
determine as of the Termination Date.


 


(n)           CODE SECTION 409A.  Notwithstanding any provision to the contrary
in this Agreement, in the event any payment or payments to which the Executive
becomes entitled under this Agreement in connection with his termination of
employment constitute deferred compensation subject to Code Section 409A, then
such payment or payments shall not be made or commence until the earlier of (i)
the expiration of the six (6)-month period measured from the date of the
Executive’s “separation from service” (as such term is at the time defined in
Treasury Regulations under Code Section 409A) with the Company or (ii) the date
of the Executive’s death following such separation from service; provided
however, that such deferral shall only be effected to the extent required to
avoid adverse tax treatment to the Executive, including (without limitation)
the additional twenty percent (20%) tax for which the Executive would otherwise
be liable in the absence of such deferral. 
During any period payment or payments to the Executive are deferred
pursuant to the foregoing, the Executive shall be entitled to interest on the
deferred payment or payments at a per annum rate equal to the highest rate of
interest applicable to six (6)-month money market accounts offered by the
following institutions:  Citibank N.A.,
Wells Fargo Bank, N.A. or Bank of America, on the date of such “separation from
service.”  Upon the expiration of the
applicable deferral period, any payments which would have otherwise been made
during that period (whether in a single sum or in installments) in the absence
of this paragraph shall be paid to the Executive or his beneficiary in one lump
sum, and all remaining payments shall be made in accordance with their normal
payment schedule hereunder.


 


(o)           TAXES.


 


(i)            In the event that the Company undergoes a Change
in Ownership or Control (as defined below), and in connection with such event
or thereafter, the


 


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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 the Executive in
connection with or following such Change in Control constitute Contingent
Compensation Payments, (ii) the amount, if any, of the excise tax (the “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
thirty (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 (3) 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 fifteen (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 fifteen (15)-day period, such dispute shall be settled exclusively
by arbitration in Philadelphia, Pennsylvania, 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 (3) 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 (3)
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.


 


(ii)           For purposes of this Section 10(o), the following terms shall have the
following respective meanings:


 


(A)                              “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.


 


15

















 


(B)                                “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 Code Section 280G(c)) and that is contingent (within the meaning of
Code Section 280G(b)(2)(A)(i)) on a Change in Ownership or Control of the
Company.


 


(C)                                “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 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.


 


11.           TREATMENT
OF EQUITY GRANTS UPON CHANGE IN CONTROL.


 


In the event of
the occurrence of a Change in Control, each Equity Grant held by the Executive,
whether or not issued under this Employment Agreement, that has not vested
prior to the date of such occurrence shall immediately vest (and all relevant
vesting restrictions shall lapse) and to the extent subject to an exercise
period, shall remain exercisable until the termination date specified in Section
10 of this Agreement; provided, however, that (i) the accelerated vesting
described in this Section 11 shall not be contingent on the termination of the
Executive’s employment with the Company; and (ii) if, pursuant to the terms of
the relevant Company equity compensation plan or of the relevant Equity Grant
instrument, a longer exercise period than the period provided for in Section 10
is applicable, then such longer exercise period shall control.


 


16

















 


12.                                 CONFIDENTIALITY
& ASSIGNMENT OF INVENTIONS.


 


(a)           The
Executive has previously executed and delivered to the Company the Company’s
standard employee Confidentiality and Assignment of Inventions Agreement, and
acknowledges that he continues to be bound by that Agreement.


 


(b)           Upon
the termination of the Executive’s employment, the Executive (or in the event
of his death, the Executive’s personal representative) shall promptly surrender
to the Company the original and all copies of any materials containing
confidential information of the Company which are then in the Executive’s
possession or control; provided, however, that the Executive shall not be
required to surrender his rolodexes, personal diaries and other items of a
personal nature.


 


13.                                 NON-COMPETITION;
NON-SOLICITATION.


 


(a)           The
Executive acknowledges (i) that in the course of his employment with the
Company he has and will become familiar with trade secrets and customer lists
of, and other confidential information concerning, the Company and its
Affiliates, customers, and clients and (ii) that his services will be of
special, unique and extraordinary value to the Company.


 


(b)           The
Executive agrees that, during the Employment Term and for a period of one year
following his termination of employment for any reason (the “Non-Competition
Period”), he shall not in any manner, directly or indirectly, through any
person, firm, corporation or enterprise, alone or as a member of a partnership
or as an officer, director, stockholder, investor or employee of or advisor or
consultant to any person, firm, corporation or enterprise or otherwise, engage
or be engaged, or assist any other person, firm, corporation or enterprise in
engaging or being engaged (collectively, the “Restricted Activity”), in any
Competitive Activity (as defined below). For the purposes of this Section 13, a
“Competitive Activity” shall mean unless otherwise determined by the Board a
business that (i) is being conducted by the Company or any Affiliate at the
time in question and (ii) was being conducted, or was under active
consideration to be conducted, by the Company or any Affiliate, at the date of
the termination of the Executive’s employment. 
It is agreed and understood that the prohibitions provided for in this
Section 13(b) shall not restrict the Executive from engaging in Restricted
Activity for any subsidiary, division or Affiliate or unit of a company
(collectively a “Related Entity”) if that Related Entity is not engaged in a
Competitive Activity, irrespective of whether some other Related Entity of that
company engages in what would otherwise be considered to be a Competitive
Activity (as long as Executive does not engage in Restricted Activity for such
other Related Entity).


 


(c)           The
Executive further agrees that during the Non-Competition Period he shall not
(i) in any manner, directly or indirectly, hire or cause to be hired any
employee of or advisor or consultant to the Company or any of its Affiliates
for any purpose or in any capacity whatsoever, or (ii) in connection with any
business to which Section 13(b) applies, call on, service, solicit or otherwise
do business with any customer of the Company or any of its Affiliates;
provided, however, that the restriction contained in clause (ii) of this
Section 13(c) shall not apply to, or interfere with, the proper performance by
the Executive of his duties and responsibilities under Section 3 of this
Agreement.


 


17

















 


(d)           Nothing
in this Section 13 shall prohibit the Executive from being a passive owner of
not more than two percent (2%) of the outstanding common stock, capital stock
and equity of any firm, corporation or enterprise so long as the Executive has
no active participation in the management of business of such firm, corporation
or enterprise.


 


(e)           If
the restrictions stated herein are found by a court to be unreasonable, the
parties hereto agree that the maximum period, scope or geographical area
reasonable under such circumstances shall be substituted for the stated period,
scope or area and that the court shall revise the restrictions contained herein
to cover the maximum period, scope and area permitted by law.


 


14.           REMEDIES.


 


Each of the
parties to this Agreement shall be entitled to enforce its rights under this
Agreement specifically, to recover damages and costs (including without
limitation reasonable attorney’s fees) caused by any breach of any provision of
this Agreement and to exercise all other rights existing in its favor.  The parties
hereto agree and acknowledge that money damages would not be an adequate remedy
for any breach of the provisions of this Agreement and that any party may in
its sole discretion apply to any court of law or equity of competent
jurisdiction (without posting any bond or deposit) for specific performance
and/or other injunctive relief in order to enforce or prevent any violations of
the provisions of this Agreement. 
Nothing in this Section 14 is intended to prevent the parties from
raising any and all defenses with respect to the necessity for, and scope of,
such injunctive or equitable relief.


 


15.                                 NON-DISPARAGEMENT


 


The Executive agrees not to disparage the name, business reputation or
business practices of the Company or any of its respective subsidiaries or
affiliates, or their (or their subsidiaries’ or affiliates’) officers,
employees and directors and the Company agrees not to disparage the name or
business reputation of the Executive.  If
either party fails to comply with this provision, the other party shall have
the right to respond truthfully to such disparaging statements, notwithstanding
the terms of this Section 15.


 


16.                                 RESOLUTION
OF DISPUTES.


 


Subject to the
provisions of Section 14 regarding specific performance and/or injunctive
relief, 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.


 


17.           EXPENSES.


 


Subject to the provisions of Section 14, in the event
any party hereto (for the purposes of this Section 17, the “Aggrieved Party”)
seeks a judicial adjudication of, or an award in arbitration to enforce, the
Aggrieved Party’s rights under, or to recover damages for the breach of, this
Agreement, the Aggrieved Party shall be entitled to recover from the other
party or parties, as the case may be, and shall be indemnified by the other
party or parties, as the case


 


18

















 


may
be, against, any and all costs actually and reasonably incurred by the
Aggrieved Party in such judicial adjudication or arbitration, including,
without limitation, reasonable attorney’s fees, but only if the Aggrieved Party
prevails in such proceeding.


 


18.                                 LIABILITY
INSURANCE.


 


The Company agrees
to obtain, continue and maintain a directors’ and officers’ liability insurance
policy covering the Executive to the extent the Company provides such coverage
for its other comparable executives.


 


19.                                 ASSIGNABILITY;
BINDING NATURE.


 


This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors, heirs (in the case of the Executive) and assigns.  Rights or obligations of the Company under
this Agreement may be assigned or transferred by the Company pursuant to a
merger or consolidation in which the Company is not the continuing entity, or
the sale or liquidation of all or substantially all of the assets of the
Company, provided that the assignee or transferee is the successor to all or
substantially all of the assets of the Company and such assignee or transferee
assumes the liabilities, obligations and duties of the Company, as contained in
this Agreement, either contractually or as a matter of law.  The Company further agrees that, in the event
of a sale of assets or liquidation as described in the preceding sentence, it
shall take whatever action it reasonably can in order to cause such assignee or
transferee to expressly assume the liabilities, obligations and duties of the
Company hereunder.  No rights or
obligations of the Executive under this Agreement may be assigned or transferred
by the Executive other than his rights to compensation and benefits, which may
be transferred only by will or operation of law.


 


20.                                 REPRESENTATIONS
AND WARRANTIES.


 


(a)           The
Company represents and warrants that it has all requisite corporate power and authority
to enter into this Agreement and that the performance by the Company of its
obligations under this Agreement will not violate any agreement to which it is
a party.


 


(b)           The
Executive represents that the execution of this Agreement by the Executive and
the performance by him of his obligations hereunder will not violate any
agreement to which he is a party.


 


(c)           The
Executive hereby represents and warrants that he is not bound by the terms of
any agreement with any previous employer or other party to refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party.  The Executive
further represents and warrants that Executive’s performance of all the terms
of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep in confidence proprietary information, knowledge
or data acquired by the Executive in confidence or in trust prior to Executive’s
employment with the Company.  The
Executive will not disclose to the Company or induce the Company to use any
confidential or proprietary information or material belonging to any previous
employer or others.  The Executive will
not hereafter grant anyone any rights inconsistent with the terms of this
Agreement.


 


19

















 


21.           ENTIRE
AGREEMENT.


 


This Agreement and
the Exhibits attached hereto and incorporated herein by reference contain the
entire understanding and agreement between the parties concerning the subject
matter hereof and thereof and supersede all prior agreements, understandings,
discussions, negotiations and undertakings, whether written or oral, between
the parties with respect thereto.  This
is an integrated document.


 


22.                                 AMENDMENT
OR WAIVER.


 


No provision in
this Agreement may be amended unless such amendment is agreed to in writing and
signed by the Executive and an authorized officer of the Company, other than
the Executive.  No waiver by either party
of any breach by the other party of any condition or provision contained in
this Agreement to be performed by such other party shall be deemed a waiver of
a similar or dissimilar condition or provision at the same or any prior or
subsequent time.  Any such waiver must be
in writing and signed by the Executive or an authorized officer of the Company,
other than the Executive, as the case may be.


 


23.                                 SEVERABILITY.


 


In the event that
any provision or portion of this Agreement shall be determined to be invalid or
unenforceable for any reason, in whole or in part, the remaining provisions of
this Agreement shall be unaffected thereby and shall remain in full force and
effect to the fullest extent permitted by law so as to achieve the purposes of
this Agreement.


 


24.                                 SURVIVORSHIP.


 


Except as
otherwise expressly set forth in this Agreement, the respective rights and
obligations of the parties hereunder shall survive any termination of the
Executive’s employment.  This Agreement
itself (as distinguished from the Executive’s employment) may not be terminated
by either party without the written consent of the other party.  In the event of a Change in Control, the
Company shall require any successor to the Company or any acquiror of all or
substantially all the Company’s assets to assume and honor the Agreement.


 


25.                                 REFERENCES.


 


In the event of
the Executive’s death or a judicial determination of his incompetence,
reference in this Agreement to the Executive shall be deemed, where
appropriate, to refer to his beneficiary, estate or other legal representative.


 


26.           GOVERNING
LAW/JURISDICTION.


 


This Agreement
shall be governed in accordance with the laws of the Commonwealth of
Pennsylvania without reference to principles of conflict of laws.


 


20

















 


27.                                 NOTICES.


 


All notices and
other communications required or permitted hereunder shall be in writing and
shall be deemed given when (a) delivered personally, (b) sent by certified or
registered mail, postage prepaid, return receipt requested or (c) delivered by
overnight courier (provided that a written acknowledgment of receipt is
obtained by the overnight courier) to the party concerned at the address
indicated below or to such changed address as such party may subsequently give
such notice of:


 


	
  If to the Company:

  	
   

  	
  VIASYS Healthcare Inc.

  227 Washington Street, Suite 200

  Conshohocken, PA 19428

  Attn: Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
  Copy to:

  	
   

  	
  VIASYS Healthcare Inc.

  227 Washington Street, Suite 200

  Conshohocken, PA 19428

  Attn: Corporate Vice President, Human Resources

  
	
   

  	
   

  	
   

  
	
  If to Executive:

  	
   

  	
  The last known address of the Executive, as

  provided to the Company by the Executive

  



 


28.           HEADINGS.


 


The headings of
the sections contained in this Agreement are for convenience only and shall not
be deemed to control or affect the meaning or construction of any provision of
this Agreement.


 


29.           COUNTERPARTS.


 


This Agreement may
be executed in counterparts.


 


 


[Remainder of Page
Intentionally Left Blank]


 


21

















 


IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the restatement set forth above.


 


 


	
   

  	
  VIASYS HEALTHCARE INC. 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  
	
   

  	
   

  
	
   

  	
  /s/  Randy H. Thurman

  	
   

  
	
   

  	
  Name:

  	
  Randy H. Thurman

  
	
   

  	
  Title: 

  	
  Chairman, President and Chief

  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/  Matthew M. Bennett

  	
   

  
	
   

  	
  Matthew M. Bennett

  
				



 


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