Exhibit 10.30
AGREEMENT
THIS AGREEMENT is agreed upon and entered into effective seven
days after the acceptance date indicated below by and between
MALLINCKRODT INC., a New York corporation (the "Company"), with
offices at 000 XxXxxxxxx Xxxx., X.X. Xxx 0000, Xx. Xxxxx, Xxxxxxxx
00000, and XXXX X. XXXXXXX ("Xxxxxxx") who resides at 00000 Xxxxxxxx,
Xxxxx Xxxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, Xxxxxxx has been in the employ of the Company for many
years, most recently as the Chief Operating Officer and President of
the Company; and
WHEREAS, the parties wish to establish and agree upon the terms
and conditions in which the Company shall retain consulting services
of Xxxxxxx effective with the date of Xxxxxxx' retirement from the
Company on October 31, 1998 ("Retirement Date" as described below)
for a two year period ending October 31, 2000 ("the Consultancy");
NOW, THEREFORE, in consideration of the mutual undertakings of
the parties, it is agreed as follows:
1. Retirement. Xx. Xxxxxxx agrees that he retired and resigned
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as a member of the Board of Directors of the Company effective with
the 1998 Annual Meeting and will retire and resigns all of his
positions with the Company and its affiliates effective October 31,
1998, which date, October 31, 1998, shall be his "Retirement Date."
At that time, upon and following his Retirement Date, Xx. Xxxxxxx
will make available his services as a consultant to the Company as
described in paragraph 11. Xx. Xxxxxxx acknowledges that he is an
employee at will of the Company.
2. Compensation. Until December 31, 1998, the Company shall
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continue to pay Xxxxxxx' compensation in accordance with its usual
and customary compensation practices at the rate of Xxxxxxx' current
base salary of $517,512 per year.
3. Annual Incentive Payment. Xxxxxxx shall be entitled to
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participate in the Company's Management Incentive Compensation Plan
("MICP") for the fiscal year ending June 30, 1999, with a target
annual incentive award of $142,315.80 (equal to (1/2) (55%) of
Xxxxxxx' annual base salary of $517,512). The actual amount of
Xxxxxxx' MICP payment, if any, for fiscal 1999 shall be as awarded by
the Board of Directors in its discretion and in accordance with MICP
terms at the conclusion of fiscal 1999. Payment of the fiscal 1999
MICP award, if any, shall be made following the close of fiscal year
1999 pursuant to the terms of the MICP.
4. Pension Benefit. (a) Until his termination from
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employment, Xxxxxxx will participate in the Mallinckrodt Inc.
Retirement Plan (the "Qualified Plan") and the Supplemental Executive
Retirement Life Plan of Mallinckrodt Inc. (the "SERP") according to
their terms.
(b) Upon Xxxxxxx' termination of employment, he shall be
entitled to receive Pension Benefits under the Qualified Plan in
accordance with its terms as they exist at that time based upon his
actual Credited Service and Final Average Compensation under that
Plan and based only upon Xxxxxxx' actual employment with the Company.
(c) Upon his termination of employment, he shall also be
entitled to receive Retirement Benefits under the SERP. However, in
determining SERP benefits: (i) the Company shall consider solely for
purposes of calculating his SERP benefit and under SERP Section
4.1.3., that Xx. Xxxxxxx' Continuous Service shall equal the period
of his employment plus an additional twelve years (for a total of 31
years and 3 months at October 31, 1998), (ii) if Xxxxxxx commences
receipt of his SERP benefit prior to age 62, no reduction in that
benefit shall be imposed because of benefit commencement before age
62, and (iii) if Xxxxxxx elects a lump sum form of payment, the
assumptions used to determine actuarial equivalence shall be the same
as used under the Qualified Plan to value similar lump sum payments.
(d) Upon his Retirement Date and in addition to the pension
benefits provided for in paragraph 4(a), the Company shall pay
Xxxxxxx a supplemental benefit of One Million Dollars ($1,000,000)
payable to Xxxxxxx before December 31, 1998.
5. Retirement Medical Benefits. Xxxxxxx shall be eligible to
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participate under the Mallinckrodt Retiree Medical Plan in accordance
with the Plan's terms as amended from time to time. Xxxxxxx may elect
dental and vision coverage in accordance with the Plan's terms until
Xxxxxxx turns age 65.
6. Stock Options and Awards.
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a) In regard to options previously granted prior to 1998
under the 1973 Stock Option and Award Plan, during the term of his
Consultancy as described in Paragraph 11 below, such options shall
continue to be exercisable or become exercisable in accordance with
their terms as provided in the 1973 Stock Option and Award Plan, and
Xxxxxxx shall have three years from the expiration of his
Consultancy, but not more than ten years from the date of grant of
such options, to exercise any options which are exercisable at the
expiration of the Consultancy.
b) On October 21, 1998, the Board of Directors granted
Xxxxxxx, under the Company's 1997 Equity Incentive Plan, 5-year non-
qualified options to purchase Fifty-Three Thousand Four Hundred Sixty
(53,460) shares of the Company's common stock at a price of $26-9/32
per share. The options expire on October 31, 2003. The options
shall vest and be exercisable in accordance with their terms as
provided in the 1997 Equity Incentive Plan.
7. Additional Benefits and Executive Perquisites. Following
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his Retirement Date, in addition to retiree medical benefits, Xxxxxxx
shall accrue all other retiree benefits then provided to salaried
retirees of the Company in accordance with the terms of those plans
and programs as they may be amended from time to time. Xxxxxxx shall
also continue to receive, at the Company's expense, executive tax and
estate planning benefits until July 1, 1999, at an annual cost not to
exceed the cost of such benefits allotted to Xx. Xxxxxxx under the
Company's policies and procedures.
8. Life Insurance. Following his Retirement Date, the Company
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shall continue to provide life insurance coverage under an
endorsement split dollar arrangement on Xxxxxxx' life at a level of
four times his annual base salary of $517,512. This life insurance
coverage includes the benefit formerly provided under the Company's
SLIP Program. If the policy is not in effect on the date of his
death, the benefit will be payable by the Company equating to four
times his annual base salary of $517,512, offset by any other life
insurance benefits the Company may maintain, at its cost, on his life
that are payable to his beneficiary.
9. Supplemental Annual Incentive Award. Xxxxxxx was awarded
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$434,412 by the Board of Directors under the Supplemental Annual
Incentive Award ("SAIA") Program. Payment of the SAIA award shall be
made to Xxxxxxx before December 31, 1998.
10. Termination. Subject to the provisions of Section 12 and
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the terms of the applicable benefit plans and programs, the
obligations of the Company to pay and otherwise provide compensation
and benefits to Xxxxxxx as provided in Section 2, 3, 6, 7 and 9,
shall also cease upon the death of Xxxxxxx.
11. Consultancy. Upon Xxxxxxx' Retirement Date, the Company
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shall retain him as a consultant until October 31, 2000, to perform
special projects, if any, which from time to time may be mutually
agreed upon between Xxxxxxx and the Chief Executive Officer of the
Company. Xxxxxxx agrees that prior to his becoming a consultant, he
shall execute a Consultant Invention and Secrecy Agreement, a copy of
which is attached hereto as Exhibit A. From his Retirement Date, the
Company shall pay an annual retainer of $5,000 for consulting
services plus $275 per each hour Xxxxxxx actually performs consulting
services. Any self-employment tax or taxes payable by Xxxxxxx on
account of his Consultancy, shall be paid by Xxxxxxx. Xxxxxxx shall
provide to the Chief Executive Officer a statement detailing his
consulting services and the time spent in the performance thereof for
each month in which such services are rendered. Xxxxxxx shall be
reimbursed for reasonable expenses incurred by him in rendering such
consulting services upon receipt by the Chief Executive Officer of a
statement of itemized expenses with substantiating documentation.
The parties agree that in providing such services, Xxxxxxx is
not a Company employee but is an independent contractor. While
performing these services, Xxxxxxx is not entitled to participate in
or obtain benefits under any Company employee benefit or compensation
plan or program, except as a retiree according to the terms of those
plans and programs. Xxxxxxx agrees that even if it is determined (by
a governmental agency, judicial body or otherwise) that while
performing consulting services he was a common law employee, he will
not be entitled to any compensation or benefits by reason of such
services except as described above and he specifically waives and
releases all rights to any other rights under any Company's employee
benefit and compensation programs by reason of his consulting
services.
12. Payment Upon Death. Notwithstanding anything in this
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Agreement to the contrary, Xxxxxxx' spouse, beneficiary or estate, as
the case may be, shall be entitled to compensation and benefits
pursuant to the terms of the Company's applicable employee benefit
and compensation plans and programs, as may be provided for upon
Xxxxxxx' death, together with the following additional provisions and
benefits unless previously paid to Xxxxxxx:
(a) Xxxxxxx' MICP, as discussed in Section 3 above, shall
be paid in the amount as specified in Section 3 above.
(b) Xxxxxxx' Supplemental Retirement Benefit as discussed
in Section 4(d) above, shall be paid as specified in
Section 4(d) above.
(c) Xxxxxxx' Supplemental Annual Incentive Award as
discussed in Section 9 above, shall be paid as
specified in Section 9 above.
13. Noncompete and Confidentiality. During the Consultancy,
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Xxxxxxx agrees (a) not to become an employee or proprietor of,
consultant to, or partner in, any entity which is or becomes, during
the term hereof, a direct competitor of any primary or developing
product lines within the primary or developing market areas of any
business of the Company or any of its wholly-owned subsidiaries or
that he knows has the intention of becoming such a direct competitor,
without the prior written consent of the Company, which shall not be
unreasonably withheld, (b) not to directly or indirectly: (i) induce
any customers of the Company or any of its businesses to patronize
any competing business, (ii) canvass, solicit or accept (for himself
or any other person or entity) any business relationships from any
customers of the Company or any of its businesses and (iii) cause,
request or advise any customers of the Company or any of its
businesses to withdraw, curtail or cancel any business relationship
with the Company or any of its businesses, and (c) not to divulge or
appropriate for his own use or the use of others any secret or
confidential information pertaining to the business of the Company or
any of its subsidiaries obtained during his employment by or
Consultancy with the Company. The latter obligation shall not apply
when and to the extent any of such information is or becomes
publicly known or available, other than because of Xxxxxxx' act or
omission. Notwithstanding the foregoing, any existing
confidentiality, nondisclosure or proprietary rights agreement
between the Company and Xxxxxxx shall remain in full force and effect
in accordance with its terms including, without limitation, Exhibit A
hereto. In the event that Xxxxxxx violates the provisions of this
Section 13, the Company shall, in addition to any other rights and
remedies available to it, be entitled to injunctive relief issued by
a court of competent jurisdiction enjoining restraining him from
competing with the Company, and Xxxxxxx consents to the issuance of
such injunction, and Xxxxxxx agrees that the Company shall not be
required to prove actual damages to obtain such injunctive relief.
14. Miscellaneous.
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A. This Agreement may be amended only in writing signed by
both parties and shall be binding upon all persons
entitled to receive payments hereunder, and their
respective heirs, executors or administrators and upon the
Company, its successors and assigns.
B. Any payment(s) required to be made by the Company
pursuant to this Agreement to a person who is under a legal
disability may be made by the Company to or for the benefit
of such person in such of the following ways as the Company
shall determine: (i) directly to such person, (ii) to the
legal representative of such person, (iii) to some near
relative of such person to be used for the latters'
benefit, or (iv) directly in payment of expenses in
support, maintenance or education of such person. The
Company shall not be required to see to the application by
any third party of any payment(s) made pursuant hereto.
The Company and its agents shall be relieved from all
further liability for any amounts upon their payment as
described above.
C. All questions in respect of this Agreement, including
those pertaining to its validity, interpretation and
performance, shall be determined by the laws of the State
of Missouri. The Chairman and Board of Directors of the
Company are each fully authorized and given discretion to
interpret the provisions of this Agreement and make all
determinations and take all actions hereunder, unless
otherwise stated, and their decisions will be final and
will be given maximum deference by any reviewing court or
agency.
D. This Agreement supersedes and replaces any other
agreement or commitment which Xxxxxxx may have from the
Company and any negotiations or representations regarding
its subject matter except that the terms of all employee
benefit and compensation or other plans pursuant to which
amounts may be paid under this agreement shall continue to
apply.
E. If any provision of this Agreement is for any reason
invalid or unenforceable, such invalidity or illegality
shall not affect the remaining provisions. Rather, each
provision shall be fully severable, and the Agreement shall
be construed and enforced as if any invalid or illegal
provision had not been included.
15. Waiver and Release. In consideration of the benefits
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outlined above, Xxxxxxx, on behalf of himself, his heirs, assigns and
legal representatives, hereby releases and forever discharges the
Company and its officers, directors, insurers and employees and
employee benefit plans from any and all claims, demands, damages,
causes of action or suits of whatever type under any state, federal
or local laws, including, but not limited to, the Age Discrimination
in Employment Act and other laws prohibiting employment
discrimination, as well as claims at common law or equity and in
contract or in tort and whether known or unknown, that Xxxxxxx may
have, has had or may acquire of whatever nature from the beginning of
time to the date of this Agreement or through the end of the period
of Consultancy based upon any known or unknown fact, condition or
incident occurring through the date of this Agreement or the end of
the period of Consultancy including any fact or event related to
Xxxxxxx' employment or separation from employment with the Company.
Xxxxxxx agrees not to make any claim for damages or personal
recovery by administrative charge, lawsuit or other proceeding
related to any of the above and will not seek or accept money damages
or personal relief upon the filing of any administrative claim or
judicial charge or claims. If any party brings any claim or action
which is contrary to the above release, then the party defendant to
that action shall be entitled to reimbursement for costs and
attorneys' fees incurred in the defense thereof. This release does
not discharge the Company from obligations that it otherwise has
under this Agreement and the Company's employee benefit and
compensation plans for benefits accrued to Xxxxxxx.
Xxxxxxx acknowledges that by signing this Agreement, he waives
all claims arising under the Age Discrimination in Employment Act of
1967 (ADEA) and that:
(a) This waiver of ADEA rights does not waive any ADEA
rights and claims which arise after the date of this Agreement and
this waiver is given in exchange for payment of sums and the
Consultancy, which are more than Xxxxxxx is otherwise entitled to
receive;
(b) Employee has been advised to consult an attorney
before signing this Agreement and has twenty-one (21) days to
consider it which period commenced on October 30, 1998;
(c) If Xxxxxxx executes this Agreement, it will not become
effective for seven (7) days thereafter. During this seven (7) day
period, he may revoke this release and waiver provided he submits
written notification of such revocation to the undersigned prior to
the expiration of the revocation period. If Xxxxxxx revokes this
Agreement during that period, then the Company has no duty to pay any
sums or provide any benefits described herein except for amounts
which would be payable under plans or programs by their terms without
consideration of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement be
executed on its behalf by a duly authorized officer and Xxxxxxx, to
evidence his acceptance thereof, has set his hand and seal effective
as of the date first above-written.
MALLINCKRODT INC.
By: /s/ X.X. XXXXXX
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C. Xxx Xxxxxx
Chairman & Chief Executive Officer
ACCEPTED BY:
/s/ X.X. XXXXXXX
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Xxxx X Xxxxxxx
Date: 11/9/98
