Exhibit (10)-b
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
AGREEMENT by and between Bausch & Lomb Incorporated, a New
York corporation (the "Company"), and _________________ (the
"Executive"), dated as of _________________.
The Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company
and its shareholders to assure that the Company will have
the continued dedication of the Executive, notwithstanding
the possibility, threat or occurrence of a Change of Control
(as defined in Section 2) of the Company. The Board
believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened
Change of Control and to encourage the Executive's full
attention and dedication to the Company currently and in the
event of any threatened or pending Change of Control, and to
provide the Executive with compensation and benefits
arrangements upon a Change of Control which ensure that the
compensation and benefits expectations of the Executive will
be satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these
objectives, the Board has caused the Company to enter into
this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions. (a) The "Effective Date" shall
mean the first date during the Change of Control Period (as
defined in Section 1(b)) on which a Change of Control
occurs. Anything in this Agreement to the contrary
notwithstanding, if a Change of Control occurs and if the
Executive's employment with the Company is terminated prior
to the date on which the Change of Control occurs, and if it
is reasonably demonstrated by the Executive that such
termination of employment (i) was at the request of a third
party who has taken steps reasonably calculated to effect
the Change of Control or (ii) otherwise arose in connection
with or anticipation of the Change of Control, then for all
purposes of this Agreement the "Effective Date" shall mean
the date immediately prior to the date of such termination
of employment.
(b) The "Change of Control Period" shall mean the period
commencing on the date hereof and ending on the second
anniversary of such date; provided, however, that commencing
on the date one year after the date hereof, and on each
annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the
"Renewal Date"), the Change of Control Period shall be
automatically extended so as to terminate two years from
such Renewal Date, unless at least 60 days prior to the
Renewal Date the Company shall give notice to the Executive
that the Change of Control Period shall not be so extended.
2. Change of Control. For the purpose of this Agreement,
a "Change of Control" shall mean:
(a) The acquisition by any 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 (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of
20% 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 election of
directors (the "Outstanding Company Voting Securities");
provided, however, that the following acquisitions shall not
constitute a Change of Control: (i) any acquisition
directly from the Company (excluding an acquisition by
virtue of the exercise of a conversion privilege unless the
security being so converted was itself acquired directly
from the Company), (ii) any acquisition by the Company,
(iii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (iv) any
acquisition by any corporation pursuant to a reorganization,
merger or consolidation, if, following such reorganization,
merger or consolidation, the conditions described in clauses
(i), (ii) and (iii) of subsection (c) of this Section 2 are
satisfied; or
(b) Individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent
to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a
vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an
actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than
the Board; or
(c) Approval by the shareholders of the Company of a
reorganization, merger, binding share exchange or
consolidation, in each case, unless, following such
reorganization, merger, binding share exchange or
consolidation, (i) more than 60% of, respectively, the then
outstanding shares of common stock of the corporation
resulting from such reorganization, merger, binding share
exchange or consolidation and the combined voting power of
the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting
Securities immediately prior to such reorganization, merger,
binding share exchange or consolidation in substantially the
same proportions as their ownership, immediately prior to
such reorganization, merger, binding share exchange or
consolidation, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be,
(ii) no Person (excluding the Company, any employee benefit
plan (or related trust) of the Company or such corporation
resulting from such reorganization, merger, binding share
exchange or consolidation and any Person beneficially
owning, immediately prior to such reorganization, merger,
binding share exchange or consolidation, directly or
indirectly, 20% or more of the Outstanding Company Common
Stock or Outstanding Voting Securities, as the case may be)
beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of
the corporation resulting from such reorganization, merger,
binding share exchange or consolidation or the combined
voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election
of directors and (iii) at least a majority of the members of
the board of directors of the corporation resulting from
such reorganization, merger, binding share exchange or
consolidation were members of the Incumbent Board at the
time of the execution of the initial agreement providing for
such reorganization, merger, binding share exchange or
consolidation; or
(d) Approval by the shareholders of the Company of (i)
a complete liquidation or dissolution of the Company or (ii)
the sale or other disposition of all or substantially all of
the assets of the Company, other than to a corporation, with
respect to which following such sale or other disposition,
(A) more than 60% of, respectively, the then outstanding
shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively,
of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such sale or
other disposition in substantially the same proportion as
their ownership, immediately prior to such sale or other
disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be,
(B) no Person (excluding the Company and any employee
benefit plan (or related trust) of the Company or such
corporation and any Person beneficially owning, immediately
prior to such sale or other disposition, directly or
indirectly, 20% or more of the Outstanding Company Common
Stock or Outstanding Company Voting Securities, as the case
may be) beneficially owns, directly or indirectly, 20% or
more of, respectively, the then outstanding shares of common
stock of such corporation and the combined voting power of
the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors and
(C) at least a majority of the members of the board of
directors of such corporation were members of the Incumbent
Board at the time of the execution of the initial agreement
or action of the Board providing for such sale or other
disposition of assets of the Company.
3. Employment Period. The Company hereby agrees to
continue the Executive in its employ, and the Executive
hereby agrees to remain in the employ of the Company, in
accordance with the terms and provisions of this Agreement,
for the period commencing on the Effective Date and ending
on the second anniversary of such date (the "Employment
Period").
4. Terms of Employment. (a) Position and Duties. (i)
During the Employment Period, (A) the Executive's position
(including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall
be at least commensurate in all material respects with the
most significant of those held, exercised and assigned at
any time during the 90-day period immediately preceding the
Effective Date and (B) the Executive's services shall be
performed at the location where the Executive was employed
immediately preceding the Effective Date or any office which
is less than 35 miles from such location; provided that, if
the Executive was employed at the headquarters of the
Company immediately preceding the Effective Date, such
office shall be the headquarters of the Company.
(ii) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote reasonable
attention and time during normal business hours to the
business and affairs of the Company and, to the extent
necessary to discharge the responsibilities assigned to the
Executive hereunder, to use the Executive's reasonable
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 (A)
serve on corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (C)
manage personal investments, so long as such activities do
not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company
in accordance with this Agreement. It is expressly
understood and agreed that to the extent that any such
activities have been conducted by the Executive prior to the
Effective Date, the continued conduct of such activities (or
the conduct of activities similar in nature and scope
thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of
the Executive's responsibilities to the Company.
(b) Compensation. (i) Base Salary. During the Employment
Period, the Executive shall receive an annual base salary
("Annual Base Salary"), which shall be paid in equal
installments on a monthly basis, at least equal to twelve
times the highest monthly base salary paid or payable to the
Executive by the Company and its affiliated companies in
respect of the twelve-month period immediately preceding the
month in which the Effective Date occurs. During the
Employment Period, the Annual Base Salary shall be reviewed
at least annually and shall be increased at any time and
from time to time as shall be substantially consistent with
increases in base salary generally awarded in the ordinary
course of business to other peer executives of the Company
and its affiliated companies. Any increase in Annual Base
Salary shall not serve to limit or reduce any other
obligation to the Executive under this Agreement. Annual
Base Salary shall not be reduced after any such increase and
the term Annual Base Salary as utilized in this Agreement
shall refer to Annual Base Salary as so increased. As used
in this Agreement, the term "affiliated companies" shall
include any company controlled by, controlling or under
common control with the Company.
(ii) Annual Bonus. (A) In addition to Annual Base
Salary, the Executive shall be paid, for each fiscal year
ending during the Employment Period, a regular annual bonus
(the "Annual Bonus") in cash at least equal to the average
annualized (for any fiscal year consisting of less than
twelve full months or with respect to which the Executive
has been employed by the Company for less than twelve full
months) bonus paid or payable, including by reason of any
deferral, to the Executive by the Company under the
Company's Executive Incentive Compensation Plan (or any
predecessor or successor plan thereto) in respect of the
three fiscal years immediately preceding the fiscal year in
which the Effective Date occurs (the "Recent Average Bonus";
the highest such annualized bonus paid or payable to the
Executive in respect of such three fiscal years shall be
hereinafter referred to as the "Highest Recent Bonus").
Each such Annual Bonus shall be paid no later than the end
of the third month of the fiscal year next following the
fiscal year for which the Annual Bonus is awarded, unless
the Executive shall elect to defer the receipt of such
Annual Bonus.
(B) In addition to Annual Base Salary and the Annual
Bonus, the Executive shall be paid, for each performance
cycle ending during the Employment Period, a long-term bonus
(the "Long-Term Bonus") in cash at least equal to the
average long-term incentive bonus (the "Recent Long-Term
Bonus"), if any, paid or payable in cash or shares of stock
of the Company to the Executive by the Company under the
Company's Long-Term Incentive Program (or any predecessor or
successor plan thereto) (the "LTIP") in respect of the last
three completed performance cycles ending with the
performance cycle ending in the fiscal year preceding the
fiscal year in which the Change of Control Date occurs (or,
if less, in respect of the number of completed performance
cycles for which the Executive has received a long-term
bonus). If the Executive was not a participant in the LTIP
in one or more of such completed cycles, but is, at the
Change of Control Date, a participant in the LTIP, the
Recent Long-Term Bonus shall be equal to (1) the sum of the
Standard Award(s) (as defined in the LTIP) for each cycle in
which the Executive is participating at the Change of
Control Date, assuming a Salary Midpoint for the Third Year
of Award Cycle (as such term is used in the LTIP) equal to
the Annual Base Salary at the Change of Control Date,
divided by (2) the number of performance cycles in which the
Executive was participating at such time. Each such Long-
Term Bonus shall be paid pursuant to a plan which has three-
year performance cycles following those of the LTIP and is
otherwise substantially similar to the LTIP and shall be
paid no later than the end of the third month of the fiscal
year next following the fiscal year for which the Long-Term
Bonus is awarded, unless the Executive shall elect to defer
the receipt of such Long-Term Bonus.
(iii) Incentive, Savings and Retirement Plans. During
the Employment Period, the Executive shall be entitled to
participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to
other peer executives of the Company and its affiliated
companies, but in no event shall such plans, practices,
policies and programs provide the Executive with incentive
opportunities (measured with respect to both regular and
special incentive opportunities, to the extent, if any, that
such distinction is applicable), savings opportunities and
retirement benefit opportunities, in each case, less
favorable, in the aggregate, than the most favorable of
those provided by the Company and its affiliated companies
for the Executive under such plans, practices, policies and
programs as in effect at any time during the 90-day period
immediately preceding the Effective Date or if more
favorable to the Executive, those provided generally at any
time after the Effective Date to other peer executives of
the Company and its affiliated companies.
(iv) Welfare Benefit Plans. During the Employment
Period, the Executive and/or the Executive's family, as the
case may be, shall be eligible for participation in and
shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company and
its affiliated companies (including, without limitation,
medical, prescription, dental, disability, salary
continuance, employee life, group life, accidental death and
travel accident insurance plans and programs) to the extent
applicable generally to other peer executives of the Company
and its affiliated companies, but in no event shall such
plans, practices, policies and programs provide the
Executive with benefits which are less favorable, in the
aggregate, than the most favorable of such plans, practices,
policies and programs in effect for the Executive at any
time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, those
provided generally at any time after the Effective Date to
other peer executives of the Company and its affiliated
companies.
(v) Expenses. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement
for all reasonable employment expenses incurred by the
Executive in accordance with the most favorable policies,
practices and procedures of the Company and its affiliated
companies in effect for the Executive at any time during the
90-day period immediately preceding the Effective Date or,
if more favorable to the Executive, as in effect generally
at any time thereafter with respect to other peer executives
of the Company and its affiliated companies.
(vi) Fringe Benefits and Perquisites. During the
Employment Period, the Executive shall be entitled to fringe
benefits and perquisites in accordance with the most
favorable plans, practices, programs and policies of the
Company and its affiliated companies in effect for the
Executive at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as in effect generally at any time thereafter
with respect to other peer executives of the Company and its
affiliated companies.
(vii) Office and Support Staff. During the Employment
Period, the Executive shall be entitled to an office or
offices of a size and with furnishings and other
appointments, and to exclusive personal secretarial and
other assistance, at least equal to the most favorable of
the foregoing provided to the Executive by the Company and
its affiliated companies at any time during the 90-day
period immediately preceding the Effective Date or, if more
favorable to the Executive, as provided generally at any
time thereafter with respect to other peer executives of the
Company and its affiliated companies.
(viii) Vacation. During the Employment Period, the
Executive shall be entitled to paid vacation in accordance
with the most favorable plans, policies, programs and
practices of the Company and its affiliated companies as in
effect for the Executive at any time during the 90-day
period immediately preceding the Effective Date or, if more
favorable to the Executive, as in effect generally at any
time thereafter with respect to other peer executives of the
Company and its affiliated companies.
5. 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 the 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 12(b) of its intention to terminate the
Executive's employment. In such event, the Executive's
employment with the Company shall terminate effective on the
30th day after receipt of such notice by the Executive (the
"Disability Effective Date"), provided that, within the 30
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 consecutive
business days as a result of incapacity due to mental or
physical illness which is determined to be total and
permanent by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive's
legal representative (such agreement as to acceptability not
to be withheld unreasonably).
(b) Cause. The Company may terminate the Executive's
employment during the Employment Period for Cause. For
purposes of this Agreement, "Cause" shall mean (i) a
material breach by the Executive of the Executive's
obligations under Section 4(a) (other than as a result of
incapacity due to physical or mental illness) which is
demonstrably willful and deliberate on the Executive's part,
which is committed in bad faith or without reasonable belief
that such breach is in the best interests of the Company and
which is not remedied in a reasonable period of time after
receipt of written notice from the Company specifying such
breach or (ii) the conviction of the Executive of a felony
involving moral turpitude.
(c) Good Reason; Window Period. The Executive's
employment may be terminated (i) during the Employment
Period by the Executive for Good Reason or (ii) during the
Window Period by the Executive without any reason. For
purposes of this Agreement, the "Window Period" shall mean
the 30-day period immediately following the first
anniversary of the Effective Date. For purposes of this
Agreement, "Good Reason" shall mean
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position
(including status, offices, titles and reporting
requirements), authority, duties or responsibilities as
contemplated by Section 4(a) or any other action by the
Company which results in a diminution in such position,
authority, duties or responsibilities, 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 failure by the Company to comply with any of
the provisions of Section 4(b), 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;
(iii) the Company's requiring the Executive to be
based at any office or location other than that described in
Section 4(a)(i)(B);
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly
permitted by this Agreement; or
(v) any failure by the Company to comply with and
satisfy Section 11(c), provided that such successor has
received at least ten days prior written notice from the
Company or the Executive of the requirements of Section
11(c).
For purposes of this Section 5(c), any good faith
determination of "Good Reason" made by the Executive shall
be conclusive.
(d) Notice of Termination. Any termination by the
Company for Cause, or by the Executive without any reason
during the Window Period or for Good Reason, shall be
communicated by Notice of Termination to the other party
hereto given in accordance with Section 12(b). 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 15 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 hereunder or preclude the
Executive or the Company from asserting such fact or
circumstance in enforcing the Executive's or the Company's
rights hereunder.
(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 during the Window
Period or for Good Reason, the date of receipt of the Notice
of Termination or any later date specified therein, as the
case may be, (ii) if the Executive's employment is
terminated by the Company other than for Cause or
Disability, the Date of Termination shall be the date on
which the Company notifies the Executive of such termination
and (iii) if the Executive's employment is terminated by
reason of death or Disability, the Date of Termination shall
be the date of death of the Executive or the Disability
Effective Date, as the case may be.
6. Obligations of the Company upon Termination. (a)
Good Reason or during the Window Period; Other Than for
Cause, Death or Disability. If, during the Employment
Period, the Company shall terminate the Executive's
employment other than for Cause or Disability or the
Executive shall terminate employment either for Good Reason
or without any reason during the Window Period, in lieu of
the obligations of the Company under Section 4 for the
remainder of the Employment Period:
(i) the Company shall pay to the Executive in a lump
sum in cash within 30 days after the Date of Termination the
aggregate of the following amounts:
A. the sum of (1) any amounts required to be paid
under Section 4 through the Date of Termination not
theretofore paid, including, without limitation, the
Executive's Annual Base Salary through the Date of
Termination, (2) the product of (x) the greater of (I) the
Annual Bonus paid or payable, including by reason of any
deferral, to the Executive (and annualized for any fiscal
year consisting of less than twelve full months or for which
the Executive has been employed for less than twelve full
months) for the most recently completed fiscal year during
the Employment Period, if any, (the "Current Bonus"), and
(II) the Recent Average Bonus and (y) a fraction, the
numerator of which is the number of days in the current
fiscal year through the Date of Termination, and the
denominator of which is 365, such product to be reduced by
any amount paid to the Executive following the Effective
Date pursuant to Section 7.0 of the Company's Executive
Incentive Compensation Plan (or any successor plan) as a
result of the termination of the Executive's employment, and
(3) any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon) and
any accrued vacation pay, in each case to the extent not
theretofore paid (the sum of the amounts described in
clauses (1), (2) and (3) shall be hereinafter referred to as
the "Accrued Obligations"); and
B. the amount (such amount shall be hereinafter
referred to as the "Severance Amount") equal to the product
of (1) two and (2) the sum of (x) the Executive's Annual
Base Salary and (y) the greater of the Highest Recent Bonus
and the Current Bonus; provided, however, that such amount
shall be reduced by the present value (determined as
provided in Section 280G(d)(4) of the Internal Revenue Code
of 1986, as amended (the "Code")) of any other amount of
severance relating to salary or bonus continuation to be
received by the Executive upon termination of employment of
the Executive under any severance plan, policy or
arrangement of the Company; and
C. a separate lump-sum supplemental retirement benefit
(the amount of such benefit shall be hereinafter referred to
as the "Supplemental Retirement Amount") equal to the
difference between (1) the actuarial equivalent (utilizing
for this purpose the actuarial assumptions utilized with
respect to the Bausch & Lomb Retirement Benefits Plan (or
any successor plan thereto) (the "Retirement Plan") during
the 90-day period immediately preceding the Effective Date)
of the benefit payable under the Retirement Plan and any
supplemental and/or excess retirement plan of the Company
and its affiliated companies providing benefits for the
Executive (a "SERP") which the Executive would receive if
the Executive's employment continued at the compensation
level provided for in Sections 4(b)(i) and 4(b)(ii) for two
years following the Date of Termination, assuming for this
purpose that all accrued benefits are fully vested and that
benefit accrual formulas are no less advantageous to the
Executive than those in effect during the 90-day period
immediately preceding the Effective Date, and (2) the
actuarial equivalent (utilizing for this purpose the
actuarial assumptions utilized with respect to the
Retirement Plan during the 90-day period immediately
preceding the Effective Date) of the Executive's actual
benefit (paid or payable), if any, under the Retirement Plan
and the SERP; provided, however, that if all or a portion of
such Supplemental Retirement Amount, to the extent relating
to a SERP, is funded through a trust of which the Executive
is a beneficiary, the Supplemental Retirement Amount to such
extent shall be paid from such trust; and
D. a separate lump-sum supplemental retirement benefit
(the amount of such benefit shall be hereinafter referred to
as the "SERP Payment") in discharge of the Company's
obligations under the SERP equal to the actuarial equivalent
(utilizing for this purpose the actuarial assumptions
utilized with respect to the Retirement Plan during the 90-
day period immediately preceding the Effective Date) of the
Executive's benefit accrued through the Date of Termination
under the SERP; provided, however, that to the extent such
amount is funded through a trust of which the Executive is a
beneficiary, such amount to the extent so funded shall be
paid from such trust; and
(ii) for two years following the Date of Termination,
or such longer period as any plan, program, practice or
policy may provide, the Company shall continue benefits to
the Executive and/or the Executive's family at least equal
to those which would have been provided to them in
accordance with the plans, programs, practices and policies
described in Section 4(b)(iv) if the Executive's employment
had not been terminated in accordance with the most
favorable plans, practices, programs or policies of the
Company and its affiliated companies as in effect and
applicable generally to other peer executives and their
families during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to
other peer executives of the Company and its affiliated
companies and their families, provided, however, that if the
Executive becomes reemployed with another employer and is
eligible to receive medical or other welfare benefits under
another employer provided plan, the medical and other
welfare benefits described herein shall be secondary to
those provided under such other plan during such applicable
period of eligibility (such continuation of such benefits
for the applicable period herein set forth shall be
hereinafter referred to as "Welfare Benefit Continuation").
For purposes of determining eligibility of the Executive for
retiree benefits pursuant to such plans, practices, programs
and policies, the Executive shall be considered to have
remained employed until the end of the two year period
following the Date of Termination and to have retired on the
last day of such period; and
(iii) to the extent not theretofore paid or provided,
the Company shall timely pay or provide to the Executive
and/or the Executive's family any other amounts or benefits
required to be paid or provided or which the Executive
and/or the Executive's family is eligible to receive
pursuant to this Agreement and under any plan, program,
policy or practice or contract or agreement of the Company
and its affiliated companies as in effect and applicable
generally to other peer executives and their families during
the 90-day period immediately preceding the Effective Date
or, if more favorable to the Executive, as in effect
generally thereafter with respect to other peer executives
of the Company and its affiliated companies and their
families (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, in lieu of the obligations of the Company under
Section 4 for the remainder of the Employment Period, the
Company shall provide for (i) payment of Accrued Obligations
and the SERP Payment (which shall be paid to the Executive's
estate or beneficiary, as applicable, in a lump sum in cash
within 30 days of the Date of Termination) and the timely
payment or provision of the Welfare Benefit Continuation and
Other Benefits (excluding, in each case, Death Benefits (as
defined below)) and (ii) payment to the Executive's estate
or beneficiary, as applicable, in a lump sum in cash within
30 days of the Date of Termination of an amount equal to the
greater of (A) the sum of the Severance Amount and the
Supplemental Retirement Amount and (B) the present value
(determined as provided in Section 280G(d)(4) of the Code of
any cash amount to be received by the Executive or the
Executive's family as a death benefit pursuant to the terms
of any plan, policy or arrangement of the Company and its
affiliated companies, but not including any proceeds of life
insurance covering the Executive to the extent paid for
directly or on a contributory basis by the Executive (which
shall be paid in any event as an Other Benefit) (the
benefits included in this clause (B) shall be hereinafter
referred to as the "Death Benefits").
(c) Disability. If the Executive's employment is
terminated by reason of the Executive's Disability during
the Employment Period, in lieu of the obligations of the
Company under Section 4 for the remainder of the Employment
Period, the Company shall provide for (i) payment of Accrued
Obligations and the SERP Payment (which shall be paid to the
Executive in a lump sum in cash within 30 days of the Date
of Termination) and the timely payment or provision of the
Welfare Benefit Continuation and Other Benefits (excluding,
in each case, Disability Benefits (as defined below)) and
(ii) payment to the Executive in a lump sum in cash within
30 days of the Date of Termination of an amount equal to the
greater of (A) the sum of the Severance Amount and the
Supplemental Retirement Amount and (B) the present value
(determined as provided in Section 280G(d)(4) of the Code)
of any cash amount to be received by the Executive as a
disability benefit pursuant to the terms of any plan, policy
or arrangement of the Company and its affiliated companies,
but not including any proceeds of disability insurance
covering the Executive to the extent paid for directly or on
a contributory basis by the Executive (which shall be paid
in any event as an Other Benefit) (the benefits included in
this clause (B) shall be hereinafter referred to as the
"Disability Benefits").
(d) Cause; Other than for Good Reason. If the
Executive's employment shall be terminated for Cause during
the Employment Period, in lieu of the obligations of the
Company under Section 4 for the remainder of the Employment
Period, the Company shall, within 30 days following the Date
of Termination, pay to the Executive any unpaid Annual Base
Salary through the Date of Termination plus the amount of
any compensation previously deferred by the Executive to the
extent theretofore unpaid. If the Executive terminates
employment during the Employment Period, excluding a
termination either for Good Reason or without any reason
during the Window Period, in lieu of the obligations of the
Company under Section 4 for the remainder of the Employment
Period, the Company shall, within 30 days following the Date
of Termination, pay to the Executive all Accrued Obligations
and the SERP Payment and pay or provide all Other Benefits
on a timely basis.
7. Non-exclusivity of Rights. Except as provided in
Sections 6(a)(ii), 6(b) and 6(c), 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 or any of its affiliated companies
and for which the Executive may qualify, nor shall anything
herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement with the
Company or any of its affiliated companies. 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.
8. Full Settlement; Resolution of Disputes.
(a) 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 and, except as provided
in Section 6(a)(ii), such amounts shall not be reduced
whether or not the Executive obtains other employment. The
Company agrees to pay promptly as incurred, to the full
extent permitted by law, all legal fees and expenses which
the Executive may reasonably incur as a result of any
contest (regardless of the outcome thereof) by the Company,
the Executive or others of the validity or enforceability
of, or liability under, any provision of this Agreement or
any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any
payment pursuant to this Agreement), plus in each case
interest on any delayed payment at the applicable Federal
rate provided for in Section 7872(f)(2)(A) of the Code.
(b) If there shall be any dispute between the Company
and the Executive (i) in the event of any termination of the
Executive's employment by the Company, whether such
termination was for Cause, or (ii) in the event of any
termination of employment by the Executive, whether Good
Reason existed, then, unless and until there is a final,
nonappealable judgment by a court of competent jurisdiction
declaring that such termination was for Cause or that the
determination by the Executive of the existence of Good
Reason was not made in good faith, the Company shall pay all
amounts, and provide all benefits, to the Executive and/or
the Executive's family or other beneficiaries, as the case
may be, that the Company would be required to pay or provide
pursuant to Section 6(a) as though such termination were by
the Company without Cause or by the Executive with Good
Reason; provided, however, that the Company shall not be
required to pay any disputed amounts pursuant to this
paragraph except upon receipt of an undertaking by or on
behalf of the Executive to repay all such amounts to which
the Executive is ultimately adjudged by such court not to be
entitled.
9. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that
any payment or distribution by the Company to or for the
benefit of the Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any
additional payments required under this Section 9) (a
"Payment") would be subject to the excise tax imposed by
Section 4999 of the Code or any interest or penalties are
incurred by the Executive with respect to such excise tax
(such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to
such taxes), including, without limitation, any income taxes
(and any interest and penalties imposed with respect
thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 9(c), all
determinations required to be made under this Section 9,
including whether and when a Gross-Up Payment is required
and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be
made by the auditors for the Company for the fiscal year in
which the Change of Control occurs (the "Accounting Firm")
who shall provide detailed supporting calculations, together
with a written opinion with respect to the accuracy of such
calculations, both to the Company and the Executive within
15 business days of the receipt of notice from the Executive
that there has been a Payment, or such earlier time as is
requested by the Company. In the event that the Accounting
Firm is serving (or has served within the three years
preceding the Effective Date) as accountant or auditor for
the individual, entity or group effecting the Change of
Control or any affiliate thereof, the Executive shall
appoint another nationally recognized accounting firm to
make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm
hereunder). All fees and expenses of the Accounting Firm
shall be borne solely by the Company. Any Gross-Up Payment,
as determined pursuant to this Section 9, shall be paid by
the Company to the Executive within five days of the receipt
of the Accounting Firm's determination. If the Accounting
Firm determines that no Excise Tax is payable by the
Executive, it shall furnish the Executive with a written
opinion that failure to report the Excise Tax on the
Executive's applicable federal income tax return would not
result in the imposition of a negligence or similar penalty.
Any determination by the Accounting Firm shall be binding
upon the Company and the Executive. As a result of the
uncertainty in the application of Section 4999 of the Code
at the time of the initial determination by the Accounting
Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required
to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Section 9(c) and the
Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for
the benefit of the Executive.
(c) The Executive shall notify the Company in writing
of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of the
Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten business days after the
Executive is informed in writing of such claim and shall
apprise the Company of the nature of such claim and the date
on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-
day period following the date on which it gives such notice
to the Company (or such shorter period ending on the date
that any payment of taxes with respect to such claim is
due). If the Company notifies the Executive in writing
prior to the expiration of such period that it desires to
contest such claim, the Executive shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in
writing from time to time, including, without limitation,
accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim; provided, however, that
the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify
and hold the Executive harmless, on an after-tax basis, for
any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 9(c),
the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole
option, either direct the Executive to pay the tax claimed
and xxx for a refund or contest the claim in any permissible
manner, and the Executive agrees to prosecute such contest
to a determination before any administrative tribunal, in a
court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however,
that if the Company directs the Executive to pay such claim
and xxx for a refund, the Company shall advance the amount
of such payment to the Executive, on an interest-free basis
and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and further
provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is
claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest
shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and the Executive shall
be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any
other taxing authority.
(d) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 9(c), the
Executive becomes entitled to receive any refund with
respect to such claim, the Executive shall (subject to the
Company's complying with the requirements of Section 9(c))
promptly pay to the Company the amount of such refund
(together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to
Section 9(c), a determination is made that the Executive
shall not be entitled to any refund with respect to such
claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior
to the expiration of 30 days after such determination, then
such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to
the extent thereof, the amount of Gross-Up Payment required
to be paid.
10. Confidential Information. 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 or any of its affiliated companies and which
shall not be or become public knowledge (other than by acts
by 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. In no event shall an asserted violation of the
provisions of this Section 10 constitute a basis for
deferring or withholding any amounts otherwise payable to
the Executive under this Agreement.
11. 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.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(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.
12. Miscellaneous. (a) This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York, without reference to 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:
If to the Company:
Bausch & Lomb Incorporated
Xxx Xxxxxx & Xxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
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) The Company may withhold from any amounts payable
under this Agreement such Federal, state or local taxes as
shall be required to be withheld pursuant to any applicable
law or regulation.
(e) The Executive's or the Company's failure to insist
upon strict compliance with any provision hereof or any
other provision of this Agreement or the failure to assert
any right the Executive or the Company may have hereunder,
including, without limitation, the right of the Executive to
terminate employment for Good Reason pursuant to Section
5(c)(i)-(v), shall not be deemed to be a waiver of such
provision or right or any other provision or right of this
Agreement.
(f) The Executive and the Company acknowledge that,
except as may otherwise be provided under any other written
agreement between the Executive and the Company, the
employment of the Executive by the Company is "at will" and,
prior to the Effective Date, may be terminated by either the
Executive or the Company at any time. Moreover, if prior to
the Effective Date, the Executive's employment with the
Company terminates, then the Executive shall have no further
rights under this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from its
Board of Directors, the Company has caused these presents to
be executed in its name on its behalf, all as of the day and
year first above written.
BAUSCH & LOMB INCORPORATED
By: ___________________________
Xxxxxxx X. Xxxxxxxxx
President and
Chief Executive Officer
By: __________________________
