BAUSCH & LOMB INCORPORATED EMPLOYMENT AGREEMENT
Exhibit
(10)-xx
XXXXXX
& LOMB INCORPORATED
EMPLOYMENT
AGREEMENT
AGREEMENT
(this “Agreement”)
by and
between Bausch & Lomb Incorporated, a New York corporation (the
“Company”),
and
Xxxxxx X. Xxxxxxxx (the “Executive”)
dated
as of the 1st
day of
January, 2007.
WHEREAS,
the Executive currently has an employment agreement with the Company dated
November 9, 2001 (the “Prior
Agreement”);
WHEREAS,
the Company and the Executive now wish to enter into a new employment agreement
as set forth herein, which shall supersede the Prior Agreement in all respects;
and
WHEREAS,
the Company has determined that it is in the best interests of the Company
and
its shareholders to assure that the Company will continue to have the dedicated
services of the Executive as provided in this Agreement.
NOW,
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective
Date.
The
“Effective
Date”
of
this
Agreement shall as of January 1, 2007.
2. Employment
Period.
(a) Term
of Agreement.
The
Company hereby agrees to continue to employ the Executive, and the Executive
hereby agrees to continue to be employed by the Company, subject to the terms
and conditions of this Agreement, for the period commencing as of the Effective
Date and ending on December 31, 2009 (the “Employment
Period”).
(b) Renewal
Terms.
Commencing upon the expiration of the initial three-year term of this Agreement
as provided in Section 2(a)
hereof,
this Agreement shall be renewed automatically for successive one year terms
unless either party hereto gives the other party at least six months prior
written notice of non-renewal. Each such one-year renewal term shall then be
deemed to be the Employment Period.
3. Terms
of Employment.
(a) Position
and Duties.
(i)
During
the Employment Period, the Executive shall serve as Chairman of the Board of
Directors of the Company (the “Board”),
subject to the requirements of applicable law, and shall serve as Chief
Executive Officer of the Company, reporting directly to the Board, with such
authority, duties and responsibilities as are commensurate with such positions.
During the Employment Period, the Executive shall serve on the Company’s Board,
subject to the requirements of applicable law, and be Chairman of the Executive
Committee of the Board.
(ii) During
the Employment Period, and excluding any periods of vacation and sick leave
to
which the Executive is entitled under the Company’s policies, the Executive
agrees to devote his full working time and attention to the business and affairs
of the Company as necessary to discharge the responsibilities assigned to the
Executive hereunder, and to use the Executive’s best efforts to perform
faithfully and efficiently such responsibilities. During the Employment Period,
it shall not be a violation of this Agreement for the Executive to serve on
civic, charitable, or with the prior written consent of the Board, corporate
boards or committees, so long as such activities do not interfere with the
performance of the Executive’s responsibilities as an employee of the Company in
accordance with this Agreement.
(b) Compensation.
(i) Base
Salary.
During
the Employment Period, the Executive shall receive an annual base salary of
$1.1
million, payable in accordance with the regular payroll practices of the Company
as in effect from time to time, but not less frequently than monthly. The
Executive’s annual base salary shall be subject to annual review by the Board
(or a committee thereof), and may be increased from time to time. Once Base
Salary is increased, it may not be decreased. The Executive’s base salary as
determined herein from time to time shall constitute “Annual
Base Salary”
for
purposes of this Agreement.
(ii) Annual
Bonus.
During
the Employment Period, the Executive shall be eligible to receive an annual
cash
incentive bonus (the “Annual
Bonus”)
in
accordance with the terms and conditions of the Company’s Management Incentive
Compensation Plan, which shall include a target bonus for the Executive equal
to
125% of Annual Base Salary (the “Target
Bonus”),
upon
the attainment of one or more pre-established performance objectives set by
the
Compensation Committee of the Board (the “Committee”).
To
the extent earned, the Annual Bonus will be paid at the customary time of annual
bonus payments to other Company executives, subject to the Executive’s continued
employment with the Company at the time of payment other than as expressly
set
forth in Subsections 5(a), (b) and (c) of this Agreement.
Notwithstanding the foregoing, in the event that the Company is required to
restate its financial results in respect of any fiscal year in which an Annual
Bonus is paid to the Executive, the Executive shall be required to repay to
the
Company and/or forfeit the Annual Bonus (or a portion thereof) to the extent
required by, and consistent with, Section 304 of the Xxxxxxxx-Xxxxx Act of
2002.
(iii) Long-Term
Incentive Plan Award.
The
Executive shall be entitled to participate in the Company’s long-term incentive
plan and receive performance awards thereunder as determined by the Committee,
which shall include an award amount to be determined by the parties at a later
date, provided however, that all of the terms and conditions of such award
(including without limitation, the applicable performance metrics) shall be
set
by the Committee in its sole discretion.
(iv) Retirement
Benefits.
(A) For
purposes of determining the benefits for the Executive, the schedule for the
Executive under Section 5(a) of SERP II shall be replaced with the
following:
|
Age
|
Percentage
of Final Average
Compensation
|
|
53
|
30%
|
|
54
|
34%
|
|
55
|
40%
|
|
56
|
44%
|
|
57
|
48%
|
|
58
|
52%
|
|
59
|
56%
|
|
60
|
60%
|
To
the
extent that this Agreement is extended beyond the initial three-year term in
accordance with Section 2(b)
hereof,
the Executive shall be entitled to an additional 4% of Final Average
Compensation for each additional year beyond age 60 (based on the Executive’s
age at the time of termination of employment with the Company), up to a maximum
accrued benefit under SERP II based on a threshold of 72% of Final Average
Compensation.
As
of the
date hereof, the Executive is currently vested in, and has an accrued benefit
under SERP II based on a threshold of 48% of Final Average Compensation
(including in the calculation of Final Average Compensation the Executive’s
1999, 2000 and 2001 compensation with the Executive’s Prior Employer to the
extent such years are applicable in the calculation of Final Average
Compensation under SERP II), as specified in the schedule above, which benefit
shall not be subject to potential forfeiture under Section 11 of the SERP II
plan document but shall be subject to all other terms and conditions of SERP
II.
Any SERP II benefit that the Executive may accrue after the date hereof shall
be
subject to all terms and conditions of SERP II including, without limitation,
Section 11 of the SERP II plan document.
(B) The
annual pre-tax benefit payable to the Executive under SERP II shall be reduced
by the sum of (x) the reductions provided for in Subsections 5(a)(ii) and
5(b)(ii) of SERP II; and (y) all amounts payable to the Executive under any
other employer’s qualified or non-qualified retirement plan(s) to the extent
such amounts were funded by Prior Employer contributions.
(C) Defined
terms in this Section 3(b)(iii)
shall
have the meanings set forth in SERP II unless otherwise defined
herein.
(v) Other
Employee Benefit Plans.
During
the Employment Period, except as otherwise expressly provided herein, the
Executive shall be entitled to participate in all employee benefit, welfare,
and
other plans, practices, policies and programs applicable to senior executives
of
the Company.
(vi) Other
Benefits.
During
the Employment Period, the Executive shall be entitled to fringe benefits and
perquisites pursuant to applicable Company policies and practices, which shall
be no less favorable than the fringe benefits and perquisites provided to other
senior executives of the Company. Such benefits and perquisites shall include
the Executive’s use of the Company’s airplane for personal matters, which
airplane use shall be subject to an annual cap based on the incremental cost
to
the Company of $100,000.
(vii) Expenses.
During
the Employment Period, the Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Executive in
accordance with the Company’s policies.
4. Termination
of Employment.
(a) Death
or Disability.
The
Executive’s employment shall terminate automatically upon the Executive’s death
during the Employment Period. If the Company determines in good faith that
a
Disability of the Executive has occurred during the Employment Period (pursuant
to the definition of Disability set forth below), it may give to the Executive
written notice in accordance with Section 11(b)
of this
Agreement of its intention to terminate the Executive’s employment. In such
event, the Executive’s employment with the Company shall terminate effective on
the thirtieth day after receipt of such notice by the Executive (the
“Disability
Effective Date”),
provided
that,
within the thirty days after such receipt, the Executive shall not have returned
to full-time performance of the Executive’s duties. For purposes of this
Agreement, “Disability”
shall
mean the absence of the Executive from the Executive’s duties with the Company
on a full-time basis for 180 days in the aggregate during any 365-day period
as
a result of incapacity due to mental or physical illness as determined in good
faith by the Board.
(b) Cause.
The
Company may terminate the Executive’s employment during the Employment Period
with or without Cause. For purposes of this Agreement, “Cause”
shall
mean:
(i) the
continued failure or refusal of the Executive to perform substantially the
Executive’s duties with the Company or to follow the lawful directives of the
Board (in each case, other than any such failure resulting from incapacity
due
to physical or mental illness), within thirty days after a written demand for
substantial performance is delivered to the Executive by the Board which
specifically identifies the manner in which the Board believes that the
Executive has not substantially performed the Executive’s duties;
(ii) the
engaging by the Executive in illegal conduct, gross negligence or willful
misconduct, in each case which is materially and demonstrably injurious to
the
Company;
(iii) the
Executive’s material breach of the Company’s policies for employees or of the
provisions of this Agreement; or
(iv) the
Executive’s conviction of, or plea of guilty or nolo contendere
to, a
felony or other crime involving fraud, dishonesty or moral
turpitude.
(c) Good
Reason.
The
Executive’s employment may be terminated by the Executive with or without Good
Reason. For purposes of this Agreement, “Good
Reason”
shall
mean in the absence of the written consent of the Executive:
(i) the
assignment to the Executive of any duties materially inconsistent with the
Executive’s position (including titles and reporting requirements), authority,
duties or responsibilities as contemplated by Section 3(a)
of this
Agreement, excluding for this purpose an isolated, insubstantial and inadvertent
action not taken in bad faith and which is remedied by the Company promptly
after receipt of notice thereof given by the Executive;
(ii) any
material breach of this Agreement by the Company, including any failure by
the
Company to comply with any of the provisions of Section 3(b)
of this
Agreement, other than an isolated, insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive; or
(iii) the
Company’s requiring the Executive to be based at any office or location more
than 50 miles from the Company’s current headquarters or such other location
mutually agreed to by the Company and the Executive.
The
Executive’s ability to assert Good Reason shall not be affected by the
Executive’s physical or mental incapacity. The Executive shall provide the
Company with a written notice detailing the specific circumstances alleged
to
constitute Good Reason within ninety days after the first occurrence of such
circumstances. Otherwise, any claim of such circumstances as Good Reason shall
be deemed irrevocably waived by the Executive.
(d) Notice
of Termination.
Any
termination by the Company for Cause, or by the Executive for Good Reason,
shall
be communicated by Notice of Termination to the other party hereto given in
accordance with Section 11(b)
of this
Agreement. For purposes of this Agreement, a “Notice
of Termination”
means
a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination
of
the Executive’s employment under the provision so indicated, and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of
such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance
which
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 such fact or circumstance in
enforcing the Executive’s or the Company’s rights hereunder in accordance with
the terms hereof.
(e) Date
of Termination.
“Date
of Termination”
means
(i) if the Executive’s employment is terminated by the Company for Cause, or by
the Executive for Good Reason, the date of receipt of the Notice of Termination
or any later date specified therein within 30 days of such notice, as the case
may be, (ii) if the Executive’s employment is terminated by the Company other
than for Cause or Disability, the date on which the Company notifies the
Executive of such termination, (iii) if the Executive’s employment is terminated
by reason of death or Disability, the date of death of the Executive or the
Disability Effective Date, as the case may be, or (iv) the date on which the
Employment Period, including any renewal period, expires.
5. Obligations
of the Company
upon
Termination.
(a) Good
Reason; Without Cause.
If,
during the Employment Period, the Company shall terminate the Executive’s
employment without Cause, or the Executive shall terminate the Executive’s
employment for Good Reason, the Company shall pay or provide the Executive
with
the following, subject to the provisions of Sections 5(f),
9
and
11(d)
hereof:
(i) within
thirty days following the Date of Termination, a lump sum payment equal to
any
unpaid Annual Base Salary through the Date of Termination;
(ii) a
lump
sum amount equal to the product of (A) the Target Bonus payable to the Executive
for the year in which the Date of Termination occurs, and (B) a fraction, the
numerator of which is the number of days in the calendar year in which the
Date
of Termination occurs through the Date of Termination, and the denominator
of
which is 365,
payable, to the extent not previously paid, at the same time bonuses for the
year in which the Date of Termination occurs are paid to other senior executives
of the Company
(collectively, clauses 5(a)(i)
and
5(a)(ii)
hereof
being referred to herein as the “Accrued
Obligations”);
(iii) an
amount
equal to two times the sum of the Executive’s Annual Base Salary and Target
Bonus, payable to the Executive over a two-year period in accordance with the
regular payroll practices of the Company as in effect from time to
time;
(iv) subject
to (A) the Executive’s
timely
election of continuation coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”),
and
(B) the Executive’s continued copayment of premiums at the same level and cost
to the Executive as if the Executive were an employee of the Company (excluding,
for purposes of calculating cost, an employee’s ability to pay premiums with
pre-tax dollars), continued participation for the Executive, the Executive’s
spouse and the Executive’s dependents in the Company’s medical plan (to the
extent permitted under applicable law and the terms of such plan) on the same
basis as such benefits were provided to the Executive immediately prior to
the
Date of Termination for the then-remaining term of the Employment Period (but
not to exceed eighteen months) at the Company’s expense, provided
that the
Executive is eligible and remains eligible for COBRA coverage; and provided,
further,
that in
the event that the Executive obtains other employment that offers medical
benefits, such continuation of coverage by the Company under this Section
5(a)(iv)
shall
immediately cease;
and
(v) all
other
amounts or benefits which the Executive is eligible to receive prior to the
Date
of Termination pursuant to the terms of any plan, program, policy, practice,
contract or agreement of the Company and its affiliated companies (such other
amounts and benefits shall be hereinafter referred to as the “Other
Benefits”).
(b) Death.
If the
Executive’s employment is terminated by reason of the Executive’s death during
the Employment Period, this Agreement shall terminate without further
obligations to the Executive’s legal representatives under this Agreement, other
than (i) for payment of Accrued Obligations, and (ii) the timely payment or
provision of Other Benefits. Accrued Obligations shall be paid to the
Executive’s estate or beneficiary, as applicable, in a lump sum in cash within
thirty days following the Date of Termination. With respect to the provision
of
Other Benefits, the term Other Benefits as utilized in this Section 5(b)
shall
include death benefits as in effect on the date of the Executive’s death with
respect to senior executives of the Company and their
beneficiaries.
(c) Disability.
If the
Executive’s employment is terminated by reason of the Executive’s Disability
during the Employment Period, this Agreement shall terminate without further
obligations to the Executive, other than for (i) payment of Accrued Obligations,
and (ii) the timely payment or provision of Other Benefits. Accrued Obligations
shall be paid to the Executive in a lump sum in cash within thirty days
following the Date of Termination. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 5(c)
shall
include, and the Executive shall be entitled after the Disability Effective
Date
to receive, disability and other benefits as in effect at any time thereafter
generally with respect to senior executives of the Company.
(d) Cause;
Other than for Good Reason.
If the
Executive’s employment shall be terminated by the Company for Cause or the
Executive terminates his employment without Good Reason during the Employment
Period, or upon expiration of the Employment Period, this Agreement shall
terminate without further obligations to the Executive other than the obligation
to pay or provide to the Executive (i) to the extent theretofore unpaid, any
earned Annual Base Salary through the Date of Termination, and (ii) to the
extent theretofore unpaid, the Other Benefits.
(e) Officer
Separation Plan.
The
Executive agrees that, in the event of any termination of this Agreement or
the
Executive’s employment hereunder, the Executive will not receive any payment or
benefit under the Company’s Officer Separation Plan or any successor
plan.
(f) Release
Requirement.
Any and
all amounts payable and benefits or additional rights provided pursuant to
this
Agreement beyond the Accrued Obligations (other than amounts described in
Section 5(a)(ii)
hereof)
and the Other Benefits shall only be payable if the Executive delivers to the
Company and does not revoke a general release of all claims in favor of the
Company, its affiliates and other related parties (with appropriate exceptions
for indemnification, accrued and vested benefits under tax-qualified benefit
plans, and rights under this Agreement) in a form reasonably satisfactory to
the
parties
hereto.
6. Non-exclusivity
of Rights.
Except
as specifically provided in this Agreement, nothing in this Agreement shall
prevent or limit the Executive’s continuing or future participation in any plan,
program, policy or practice provided by the Company and for which the Executive
may qualify. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan, policy, practice or program of
or
any contract or agreement with the Company or any of its affiliated companies
at
or subsequent to the Date of Termination shall be payable in accordance with
such plan, policy, practice or program or contract or agreement except as
explicitly modified by this Agreement.
7. Full
Settlement.
The
Company’s obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action
which
the Company may have against the Executive or others. In no event shall the
Executive be obligated to seek other employment or take any other action by
way
of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement or any employee benefit plan or arrangement of
the
Company, and, except as provided in Section 5(a)(iv)
hereof,
such amounts shall not be reduced whether or not the Executive obtains other
employment.
8. Legal
Expenses.
If,
with respect to any alleged failure by Company to comply with any of the terms
of this Agreement, the Executive hires legal counsel with respect to this
Agreement or institutes any negotiations or institutes or responds to legal
action to assert or defend the validity of, enforce his rights under, or recover
damages for breach of this Agreement and thereafter the Company is found in
a
judgment no longer subject to review or appeal to have breached this Agreement
in any material respect, then the Company shall indemnify the Executive for
the
Executive’s actual reasonable expenses for attorney’s fees and disbursements.
The Company shall reimburse the Executive for the Executive’s reasonable counsel
fees associated with negotiation of this Agreement and directly related to
Company proposals or changes necessary or appropriate to comply with Code
Section 409A (as defined below) or any exemption with respect thereto, as
contemplated in Section 11(d)(ii) of this Agreement.
9. Confidential
Information; Noncompetition; Nonsolicitation;
Nondisparagement.
(a)
The
Executive shall hold in a fiduciary capacity for the benefit of the Company
all
secret or confidential information, knowledge or data relating to the Company
or
any of its affiliated companies, and their respective businesses, which shall
have been obtained by the Executive during the Executive’s employment by the
Company and which shall not be or become public knowledge (other than by acts
of
the Executive or representatives of the Executive in violation of this
Agreement). After termination of the Executive’s employment with the Company,
the Executive shall not, without the prior written consent of the Company or
as
may otherwise be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those
designated by it.
(b) The
Executive agrees that, during the Employment Period and for a period of three
years following the Date of Termination (the “Protected
Period”),
the
Executive will not, without the written consent of the Company, directly or
indirectly, (i) compete with any business in which the Company or any of its
affiliates is engaged or actively developing (or was engaging in or actively
developing as of the Date of Termination), (ii) solicit any person who is a
customer of a business conducted by the Company or any of its affiliates (or
was
a customer as of the Date of Termination), or (iii) induce or attempt to
persuade any employee of the Company or any of its affiliates to terminate
his
or her employment relationship with the Company or any of its affiliates (or
hire any former employee of the Company or any of its affiliates within 90
days
of such employee’s termination of employment). For purposes of this Agreement,
the phrase “compete”
shall
include serving as an employee, an officer, a consultant, a director, an owner,
a partner or a five percent (5%) or more shareholder of any such business or
otherwise engaging in or assisting another to engage in any such
business.
(c) The
Executive agrees
not to make negative comments or otherwise disparage the Company or its
officers, directors, employees, shareholders, agents or products, in any manner
likely to be harmful to them or their business, business reputation or personal
reputation other than while employed by the Company, in the good faith
performance of the Executive’s duties for the Company. The Company agrees that
the members of the Board as of the Date of Termination will not, while serving
as a director of the Company, make negative comments about the Executive or
otherwise disparage the Executive in any manner that is likely to be harmful
to
the Executive’s business reputation. The foregoing shall not be violated by
truthful statements in response to legal process, required governmental
testimony or filings, or administrative or arbitral proceedings (including,
without limitation, depositions in connection with such proceedings), and the
foregoing limitation on the Company’s directors shall not be violated by
statements that they in good faith believe are necessary or appropriate to
make
in connection with performing their duties and obligations for the
Company.
(d)
If it is
determined by a court of competent jurisdiction in any state that any
restriction in this Section 9
is
excessive in duration or scope or is unreasonable or unenforceable under the
laws of that state, it is the intention of the parties that such restriction
may
be modified or amended by the court to render it enforceable to the maximum
extent permitted by the laws of that state.
(e) In
the
event of a breach or threatened breach of this Section 9,
the
Executive agrees that the Company shall be entitled to injunctive relief in
a
court of appropriate jurisdiction to remedy any such breach or threatened
breach. The Executive acknowledges that damages would be inadequate and
insufficient. Any termination of the Executive’s employment or of this Agreement
shall have no effect on the continuing operation of this Section 9.
(f) In
the
event of a violation by the Executive of this Section 9,
any
severance payments or benefits being paid to the Executive pursuant to this
Agreement or otherwise (other than under the Change of Control Agreement (as
defined in Section 11(e)
hereof))
shall immediately cease, and any severance payments or benefits previously
paid
or provided to the Executive shall be immediately repaid to the
Company.
10. Successors.
(a)
This
Agreement is personal to the Executive and, without the prior written consent
of
the Company, shall not be assignable by the Executive otherwise than by will
or
the laws of descent and distribution. This Agreement shall inure to the benefit
of and be enforceable by the Executive’s legal representatives and/or
beneficiaries.
(b) This
Agreement shall inure to the benefit of and be binding upon the Company and
its
successors.
(c) The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be
required to perform it if no such succession had taken place. As used in this
Agreement, “Company”
shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this Agreement
by
operation of law or otherwise. As used in this Agreement, the term “affiliates”
and
“affiliated
companies”
shall
include any company controlled by, controlling or under common control with
the
Company.
11. Miscellaneous.
(a)
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without reference to its principles of conflict of laws.
The
captions of this Agreement are not part of the provisions hereof and shall
have
no force or effect. This Agreement may not be amended or modified otherwise
than
by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All
notices and other communications hereunder shall be in writing and shall be
given by hand delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If
to
the Executive:
Xxxxxx
X.
Xxxxxxxx
Xxx
Xxxxxx & Xxxx Xxxxx
Xxxxxxxxx,
Xxx Xxxx 00000
If
to
the Company:
Xxx
Xxxxxx & Xxxx Xxxxx
Xxxxxxxxx,
Xxx Xxxx 00000
Attention:
General Counsel
or
to
such other address as either party shall have furnished to the other in writing
in accordance herewith. Notice and communications shall be effective when
actually received by the addressee.
(c) The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
(d) (i)The
Company may withhold from any amounts payable under this Agreement such Federal,
state, local or foreign taxes as shall be required to be withheld pursuant
to
any applicable law or regulation.
(ii) The
intent of the parties is that payments and benefits under this Agreement
and
each
other Company compensation and benefits arrangement in which the Executive
is
the sole participant (including, but not limited to, the Change of Control
Agreement (as defined below) and SERP II) (the “Other Compensation Arrangements)
comply with Internal Revenue Code Section 409A and the regulations and guidance
promulgated thereunder (collectively “Code
Section 409A”)
to the
extent applicable. This Agreement and each Other Compensation Arrangement shall
be interpreted to be in compliance therewith. The Executive and the Company
will
cooperate in good faith in making such amendments to this Agreement and any
Other Compensation Arrangement, as may be necessary or appropriate in order
for
the payment and benefits hereunder and any such Other Compensation Arrangement
to comply with, or be exempt from Code
Section 409A. Any such amendments shall be made in good faith and shall, to
the
maximum extent reasonably possible, maintain the original intent and economic
benefit to the Executive (without any additional cost to the Company) and the
Company of the applicable provision of the Agreement or any such Other
Compensation Arrangement without violating the provisions of Code Section
409A.
(iii) Notwithstanding
any provision to the contrary in this Agreement or in any Other Compensation
Arrangement, if the Executive is deemed on the date of termination to be a
“specified employee” within the meaning of that term under Code Section
409A(a)(2)(B), then with regard to any payment or the provision of any benefit
that is required to be delayed in compliance with Code Section 409A(a)(2)(B),
such payment or benefit shall not be made or provided (subject to the last
sentence of this Section 11(d)(iii))
prior
to the earlier of (A) the expiration of the six (6)-month period measured from
the date of the Executive’s “separation from service” (as such term is defined
under Code Section 409A), and (B) the date of the Executive’s death (the
“Delay
Period”).
Upon
the expiration of the Delay Period, all payments and benefits delayed pursuant
to this Section 11(d)(iii)
(whether
they would have otherwise been payable in a single sum or in installments in
the
absence of such delay) shall be paid or reimbursed to the Executive in a lump
sum, and any remaining payments and benefits due under this Agreement or in
any
Other Compensation Arrangement that solely covers the Executive shall be paid
or
provided in accordance with the normal payment dates specified for them.
Notwithstanding the foregoing, to the extent that the foregoing applies to
the
provision of any ongoing welfare benefits to the Executive that would not be
required to be delayed if the premiums therefore were paid by the Executive,
the
Executive shall pay the full cost of the premiums for such welfare benefits
during the Delay Period and the Company shall pay the Executive an amount equal
to the amount of such premiums paid by the Executive during the Delay Period
promptly after its conclusion.
(iv) In
no
event whatsoever (as a result of Sections
11(d)(ii)
and
11(d)(iii)
hereof
or otherwise) shall the Company be liable for any additional tax, interest
or
penalties that may be imposed on the Executive by Code Section 409A or any
damages for failing to comply with Code Section 409A or Sections 11(d)(ii)
and
11(d)(iii)
hereof.
(e) This
Agreement constitutes the entire agreement between the Company and the Executive
and supersedes any other agreements or understandings, whether written or oral,
between the Executive and the Company which relate to the subject matter hereof
(including, but not limited to, the Prior Agreement, but excluding the Change
of
Control Employment Agreement by and between the Company and the Executive dated
November 9, 2001 (the “Change
of Control Agreement”)).
In
the event of a “change of control” (as defined in the Change of Control
Agreement) of the Company, this Agreement shall be superseded by the Change
of
Control Agreement, provided
that (i)
any awards not yet made under Section 3
of this
Agreement shall be made and (ii) any amounts payable or benefits provided to
the
Executive under the Change of Control Agreement upon a termination of employment
shall be adjusted so that, with regard to each of payment to be paid or benefit
provided hereunder and under the Change of Control Agreement, the Executive
shall receive the greatest amounts or benefits at the earliest time that such
amounts or benefits would be paid or provided under either this Agreement or
the
Change of Control Agreement (had this Agreement still been in effect, and
assuming, for this purpose, that the definition of Good Reason in the Change
of
Control Agreement also includes anything in the definition of Good Reason in
this Agreement not otherwise included in the definition under the Change of
Control Agreement); provided
that in
no event shall the Executive be entitled to a duplication of any amounts payable
or benefits provided under both agreements.
(f) The
Company hereby agrees to indemnify the Executive and hold the Executive harmless
to the extent provided under the By-Laws of the Company against and in respect
of any and all actions, suits, proceedings, claims, demands, judgments, costs,
expenses (including reasonable attorney’s fees), losses, and damages resulting
from the Executive’s good faith performance of the Executive’s duties and
obligations with the Company. This obligation shall survive the termination
of
the Executive’s employment with the Company.
(g) The
Company shall cover the Executive under directors and officers liability
insurance both during and, while potential liability exists, after the term
of
this Agreement in the same amount and to the same extent as the Company covers
its other officers and directors.
(h) In
the
event of any dispute, controversy or claim between the Company and the Executive
arising out of or relating to the interpretation, application or enforcement
of
this Agreement, the parties agree and consent to the personal jurisdiction
of
the state and local courts of Monroe County, New York and/or the United States
District Court for the Western District of New York (collectively, the
“Agreed
Venue”)
for
resolution of the dispute, controversy or claim, and that those courts, and
only
those courts, shall have non-exclusive jurisdiction to determine any dispute,
controversy or claim related to, arising under or in connection with this
Agreement. The parties also agree (i) to submit to the jurisdiction of any
competent court in the Agreed Venue, (ii) to waive any and all defenses the
parties may have on the grounds of lack of jurisdiction of such court,
(iii) that neither party shall be required to post any bond, undertaking or
other financial deposit or guarantee in seeking or obtaining such equitable
relief, and (iv)
not
to commence or maintain any action, claim, cause of action or suit (in contract,
tort or otherwise), inquiry, proceeding or investigation arising out of or
based
upon this Agreement or relating to the subject matter hereof or thereof other
than before one of the courts in the Agreed Venue nor to make any motion or
take
any other action seeking or intending to cause the transfer or removal of any
such action, claim, cause of action or suit (in contract, tort or otherwise),
inquiry, proceeding or investigation to any court other than one of the courts
in the Agreed Venue whether on the grounds of inconvenient forum or otherwise.
Notwithstanding the foregoing, any party to this Agreement may commence and
maintain an action to enforce a judgment of any of the courts in the Agreed
Venue in any court of competent jurisdiction.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and,
pursuant to the authorization from the Board, the Company has caused this
Agreement to be executed in its name and on its behalf, all as of the day and
year first above written.
|
Dated:
April 24, 2007
|
/s/
Xxxxxx X. Xxxxxxxx
Xxxxxx
X. Xxxxxxxx
|
|
Dated:
April 24, 2007
|
Bausch
& Lomb Incorporated
|
|
By:
/s/ Xxxxxxxx X. Linen
Name: Xxxxxxxx
X. Linen
Title: Chairman
of the Compensation Committee
of
the Board of Directors
|
|
|
Dated:
April 24, 2007
|
Bausch
& Lomb Incorporated
|
|
By:
/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx
X. Xxxxxxx
Title: Senior
Vice President - Human Resources
|
