Exhibit 10.5


 


VIASYS HEALTHCARE INC.

AMENDED AND RESTATED 

EMPLOYMENT AGREEMENT


 


THIS AGREEMENT is made and entered into as of May 26th,
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 Giulio A. Perillo (the “Executive”).


 


W I T N E S S E T H :


 


WHEREAS, the Company and the Executive previously entered
into an employment agreement dated as of November 29, 2004 to embody the
terms and provisions of the Executive’s employment (the “Original Agreement”);


 


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; and


 


WHEREAS, effective as of the Restatement Effective
Date, the Company and the Executive now desire to amend and restate the
Original 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, or the Compensation Committee or
other applicable committees of the Board of Directors.


 


(d)           “Bonus Plan” means the Company’s management
incentive plan or such other annual bonus plan in existence at the applicable
time.


 


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


 


(i)            the
Executive’s repeated failure to comply with the reasonable directives of the
relevant senior officers;


 


(ii)           the
Executive’s commission of a felony which is materially and demonstrably
injurious to the Company; or


 


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


 


(f)            “Change
in Control” means an event or occurrence set forth in any one or more of
subsections (i) through (iv) below (including, without limitation, 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) 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:


 


(A)          any
acquisition by the Company, or


 


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


 


(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 (A) who was a member of the Board on the date of the
execution of this Agreement or (B) 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 (B) 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 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 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


 


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subsidiaries) (such
resulting or acquiring corporation is referred to herein as the “Acquiring
Corporation”); or


 


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


 


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


 


(h)           “Disability”
or “disabled” means a disability which results in the Executive’s entitlement
to long-term disability benefits under the Company’s applicable long-term
disability plan.


 


(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)            “Notice
of Termination” means a written notice from one party to the other party hereto
given in accordance with Section 24, 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 Company to set
forth any fact or circumstance that contributes to a showing of Cause shall not
waive any right of the Company hereunder or preclude the Company from asserting
any such fact or circumstance in enforcing its rights hereunder.


 


(k)           “Pro-Rated
Annual Bonus” means 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 Bonus Plan and the provisions of Section 5, which
award, if and to the extent so determined to be owed, shall be payable when
incentive awards are normally paid to comparable executives.


 


(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.             TERM
OF EMPLOYMENT.


 


This Agreement, and all rights and obligations of the
parties hereunder, shall take effect upon the Restatement Effective Date and
shall continue until the date that is two years from 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


 


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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 Senior Vice President and Group President,
Orthopedics of the Company, and the Executive has been assigned and shall be
assigned such duties and responsibilities as are reasonably consistent with
such position(s), or such other position, duties and responsibilities as the
CEO or the Executive’s direct supervisor from time to time deems appropriate.


 


(b)           During
the Employment Term, the Executive shall devote the Executive’s entire business
time, attention and energies to the business and interest of the Company in
performing the Executive’s duties and responsibilities under this Agreement,
and to that end but without limitation of the foregoing, the Executive shall
not serve on the board of directors of other corporations or entities without
the prior approval of the Board or the Chief Executive Officer.


 


(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 the Executive’s personal investments
and affairs, provided that such activities do not materially interfere with the
proper performance of the Executive’s duties and responsibilities as set forth
in this Section 3.


 


4.             BASE
SALARY.


 


The Executive shall be paid an annualized base salary,
payable in accordance with the regular payroll practices of the Company, of $275,000.00,
which amount may be increased from time to time in the discretion of the
Board.


 


5.             ANNUAL
CASH INCENTIVE AWARD.


 


During the Employment Term, the
Executive shall participate in (a) the Bonus Plan with a target bonus of 50%
of the Base Salary, or such other amount as may be determined in its
discretion by the Board or the appropriate committee or individual to which
authority for these matters has been assigned, and (b) any other incentive
programs established by the Company for its senior level executives generally.


 


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.


 


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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 the duties and responsibilities under this Agreement,
and the Company shall promptly reimburse the Executive for such expenses,
subject to documentation in accordance with the Company’s policies.


 


9.             TERMINATION
OF EMPLOYMENT.


 


The Executive’s employment hereunder shall terminate
effective immediately upon the earlier 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);


 


(c)           the
day the Executive receives a Notice of Termination for Cause from the Company;


 


(d)           the
30th day following receipt by the Executive of a Notice of Termination without
Cause from the Company;


 


(e)           the
30th day following receipt by the Company of a Notice of Termination of
employment from the Executive (other than a Notice of Termination for
non-renewal of the Agreement);


 


(f)            the
90th day following receipt by the Company of a Notice of Termination for
non-renewal of the Agreement from the Executive pursuant to Section 2; and


 


(g)           the
last day of the Employment Term, in the event of receipt by the Executive of a
notice of non-renewal of the Agreement from the Company pursuant to Section 2.


 


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
the Executive’s death, the Executive’s estate or beneficiaries, as the case may be,
shall be entitled to the following benefits:


 


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


 


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(ii)           The
Pro-Rated Annual Bonus, if and to the extent payable; 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 Equity Grant’s
otherwise applicable exercise period).


 


(b)           TERMINATION
DUE TO DISABILITY. In the event that the Executive’s employment is terminated
by either party due to the Executive’s Disability, the Executive 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 pro-rated 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)          The
Pro-Rated Annual Bonus, if and to the extent payable; and


 


(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 Equity Grant’s
otherwise applicable exercise period).


 


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


 


(ii)           The
Executive shall not be entitled to any benefits, severance or other
compensation; and


 


(iii)          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 Equity Grant’s
otherwise applicable exercise period).


 


(d)           TERMINATION BY
THE EXECUTIVE. In the event of a termination of employment by the Executive on
the Executive’s own initiative, other than due to (A) death, (B) Disability, (C) the expiration of the then
current Employment Term, or (D) a notice from one party to the other of
its intent not to extend the Employment Term:


 


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


 


(ii)           The
Executive shall not be entitled to any benefits, severance or other
compensation; and


 


(iii)          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 Equity Grant’s
otherwise applicable exercise period).


 


(e)           TERMINATION
WITHOUT CAUSE. In the event of a termination of the Executive’s employment by
the Company, other than due to (A) death, (B) Disability, (C) Cause,
(D) a notice from one party to the other of its intent not to extend the
Employment Term, the Executive shall be entitled to the following benefits:


 


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


 


(ii)           An
amount equal to the sum of (A) the Executive’s then current annualized
Base Salary and (B) the most recent cash incentive paid or the target
bonus available under the Bonus Plan, whichever is higher, payable in a lump
sum within ninety (90) days of the Termination Date;


 


(iii)          Continued
participation, at the Company’s expense, in all medical and dental insurance
plans in which the Executive and the Executive’s family were participating on
the Termination Date until the earlier of (A) twelve (12) months following
the Termination Date, or (B) the date or dates on which the Executive
receives substantially equivalent coverage and benefits under the plans of a
subsequent employer; and


 


(iv)          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 Equity Grant’s
otherwise applicable exercise period).


 


(f)            TERMINATION
DUE TO NON-RENEWAL. Subject to the first sentence of Section 10(h), in the
event that the Company exercises its right not to renew this Agreement pursuant
to Section 2, the Executive shall be entitled to the following benefits:


 


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


 


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(ii)           The
Pro-Rated Annual Bonus, if and to the extent payable;


 


(iii)          An
amount equal to, in the sole discretion of the Company, either (A) three (3) months
of the Executive’s then current Base Salary, if the Company requests that the
Executive not continue to serve for the remainder of the Employment Term, or (B) six
(6) months of the Executive’s then current Base Salary if the Company
requests that the Executive continue to serve for the remainder of the
Employment Term, subject to the Company’s right to terminate the Executive’s
employment at any time for Cause; with the amount due under this subsection (iii) to
be payable in each case in a lump sum within thirty (30) days of the
Termination Date; and


 


(iv)          Continued
participation, at the Company’s expense, in all medical and dental insurance
plans in which the Executive and the Executive’s family were participating on
the Termination Date until the earlier of (A) three (3) months if the
Company requests that the Executive not continue to serve for the remainder of
the Employment Term or six (6) months if the Company requests that the
Executive continue to serve for the remainder of the Employment Term or (B) the
date or dates on which the Executive receives substantially equivalent coverage
and benefits under the plans of a subsequent employer.


 


(g)           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 the Executive’s 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. In addition, unless
indicated otherwise in this Agreement, the treatment of any options granted to
the Executive in the case of any of the foregoing terminations shall be
governed by the terms of the VIASYS Equity Incentive Plan or other relevant
equity compensation plan or any associated stock option agreement.


 


(h)           CHANGE
IN CONTROL. If this Agreement is not renewed by the Company as a result of a
Notice of Termination under Section 10(f) (Termination due to
Non-Renewal) delivered following a Change in Control, but only upon the
expiration of the Initial Employment Term or the Extension Term, as applicable,
in which the Change of Control occurs, the Company shall provide to the
Executive the benefits described in Section 10(e) (Termination
without Cause) in lieu of the benefits described in Section 10(f), and, in
such event, the Termination Date shall be the last day of the Employment Term. In
addition, in the event of a Change in Control, the Equity Grants held by the
Executive shall be treated in a manner consistent with the Company’s Equity
Incentive Plan, the Executive’s Stock Option Agreement and this Agreement. Notwithstanding
anything to the contrary in this Agreement, in the event the Executive’s
employment with the Company is terminated within twelve (12) months following a
Change in Control, the Executive shall be entitled to benefits equal to the
greater of: (i) the benefits due and payable to the Executive under the
change of control plan sponsored by the Company, if any (the “Change of Control
Plan”), or (ii) the benefits due and payable to the Executive under Section 10
of this Employment Agreement as a result of such termination. In furtherance
thereof, it is the parties’ understanding that, in the event of a termination
under such circumstances, the Executive


 


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shall only be entitled to
receive benefits payable under either the Change in Control Plan or this
Employment Agreement (but not both).


 


(i)            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.


 


(j)            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 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.


 


(k)           RELEASE. The additional
benefits that are not unconditionally due under applicable law payable to the
Executive under this Section 10 (including but not limited to the benefits
payable under Section 10(e)(ii)) shall be conditioned upon the Executive’s
execution of a Severance Agreement and General Release (substantially in a form that
is acceptable to the Company in its sole discretion (the “Release”)), within
ten (10) business days of the Termination Date or within such longer
period required by law, and such benefits shall not become payable until such
time as the Executive has executed the Release and any revocation period
contained in the Release has expired without the Executive having revoked the
Release. In addition, the Executive’s right to payment under this Agreement
shall cease upon the Executive’s rescission of the Release or material breach
of the Release.


 


11.           CONFIDENTIALITY &
ASSIGNMENT OF INVENTIONS.


 


(a)           The
Executive has previously executed and delivered to the Company the Company’s
standard employee Confidential Information and Invention Assignment Agreement
and acknowledges that the Executive continues to be bound by that agreement.


 


(b)           Upon
the termination of the Executive’s employment, the Executive (or, in the event
of the Executive’s 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 the Executive’s rolodexes, personal diaries and
other items of a personal nature.


 


12.           NON-COMPETITION;
NON-SOLICITATION.


 


(a)           The
Executive acknowledges (i) that in the course of the Executive’s
employment with the Company the Executive 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 the
Executive’s 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 the Executive’s termination of employment for any reason (the “Non-Competition
Period”), the Executive shall not in any manner, directly or indirectly, alone
or


 


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through any person, firm,
corporation or enterprise 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 in any Competitive Activity (as defined below). For the purposes of
this Section 12, 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.


 


(c)           The
Executive further agrees that during the Non-Competition Period the Executive
shall not (i) in any manner, directly or indirectly, solicit or recruit
(or attempt to solicit or recruit) any employee of or advisor or consultant to
the Company or its Affiliates to terminate such person’s employment or advisor
or consultant relationship with the Company or its Affiliates, work for a
person other than the Company or its Affiliates, work as an independent
contractor, or engage in any activity that would cause any such employee,
advisor or consultant to violate any agreement with the Company or its
Affiliates; (ii) 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 (iii) in
connection with any business to which Section 12(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 (iii) of this Section 12(c) shall not apply to, or
interfere with, the proper performance by the Executive of the duties and
responsibilities under Section 3 of this Agreement.


 


(d)           Nothing
in this Section 12 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 or 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.


 


(f)            If
the Executive violates any provision of Section 12, the restrictions of
the applicable provision shall continue to apply for an additional period of
one year after the date of such violation.


 


13.           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


 


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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 13 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.


 


14.           RESOLUTION
OF DISPUTES.


 


Subject to the provisions of Section 13 regarding
specific performance and/or injunctive relief, any disputes arising under or in
connection with this Agreement or the Executive’s employment or termination of
employment shall be resolved by binding arbitration, to be held in Philadelphia,
Pennsylvania, in each case in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association. Judgment
upon the award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof. To the extent permitted by applicable law and
rules, the Executive and the Company shall share equally in the administrative costs
and fees of any arbitration, including the arbitrators’ compensation, except
that the party requesting arbitration shall be solely responsible for the
applicable filing fees and costs.


 


15.           EXPENSES.


 


Subject to the provisions of Sections 13 and 14, in
the event any party hereto seeks a judicial adjudication of, or an award in
arbitration to enforce, the party’s rights under, or to recover damages for the
breach of, this Agreement, the prevailing party shall be entitled to recover
from the other party or parties, as the case may be, any and all costs
actually and reasonably incurred by the prevailing party in such judicial
adjudication or arbitration, including, without limitation, reasonable attorney’s
fees, but only to the extent the party prevails in such proceeding.


 


16.           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 the Executive’s rights to compensation and benefits, which
may be transferred only by will or operation of law. 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.


 


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17.           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 the Executive of the obligations hereunder will not violate
any agreement to which the Executive is a party.


 


(c)           The
Executive hereby represents and warrants that the Executive 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.


 


18.           ENTIRE
AGREEMENT.


 


This Agreement contains the entire understanding and
agreement between the parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect
thereto, including, without limitation, the Original Agreement. This is an
integrated document.


 


19.           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.


 


20.           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.


 


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21.           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.


 


22.           REFERENCES.


 


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


 


23.           GOVERNING
LAW/JURISDICTION.


 


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


 


24.           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.: General Counsel and Corporate Vice President,

  Human Resources

  
	
   

  	
   

  
	
  If to Executive:

  	
  The last known address
  of the Executive, as provided to

  the Company by the Executive

  



 


25.           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.


 


26.           COUNTERPARTS.


 


This Agreement may be executed in counterparts.


 


[Remainder of Page Intentionally
Left Blank]


 


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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: Chief Executive
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ GIULIO PERILLO

  	
   

  
	
   

  	
  Giulio A. Perillo

  



 


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