Exhibit 10.2
AGREEMENT
This AGREEMENT, entered into as of the 5th day of April, 1994, by
and between Mallinckrodt Group Inc., a New York corporation (the
"Company") and MICHAEL A. ROCCA ("Executive");
WHEREAS, the Board of Directors of the Company (the "Board") has
elected Executive as a Senior Vice President of the Company and has
confirmed his assignment by the Chief Executive Officer of the Company
as Senior Vice President and Chief Financial Officer of Mallinckrodt
Group Inc., and
WHEREAS, the Board has concluded it is in the interest of the
Company to enter into a contract with Executive to set forth the terms
and conditions of this relationship, as hereinafter set forth;
NOW, THEREFORE, it is mutually agreed as follows:
1. Position.
---------
The Company agrees to retain Executive, and Executive agrees
to serve, in the above capacities until April 5, 1996, and in such
capacities and until such time (subject to the provisions of Section 5
hereof), to devote all of his business time and service and his
abilities and attention to the affairs of the Company and its
subsidiaries and to the performance of such duties and
responsibilities as are provided for or incident to such capacities,
under the Bylaws of the Company or otherwise, including such duties
and responsibilities as may be assigned to him from time to time by
the Chief Executive Officer of the Company of the Board.
1
2. Base Salary.
------------
Until April 5, 1996, Executive's base salary shall be paid
by the Company in such amounts as shall be determined from time to
time by the Board provided, however, that during such period,
Executive's base salary shall be at the minimum rate of $260,000 per
year.
3. Other Compensation and Benefits.
--------------------------------
Until April 5, 1996, Executive shall be eligible to continue
to participate and accrue benefits as the case may be under all
incentive compensation plans and programs and all benefit and welfare
plans and programs available to executive officers of the Company
generally, subject to and in accordance with the terms and conditions
of such plans and programs from time to time including, but not
limited to, the Supplemental Executive Retirement Plan ("SERP") of
Mallinckrodt Group Inc., stock option plans, long term incentive
plans, management incentive compensation plans, executive perquisites,
Executive Long-term Disability Plan, and Executive Life Insurance and
Accidental Death and Dismemberment Plan. With respect to the
Company's Management Incentive Compensation Plan, Executive's target
annual bonus thereunder for fiscal years 1994, 1995, and the
applicable portion of 1996 shall be calculated at the level of 40% of
Executive's salary grade midpoint and may, in the sole and absolute
discretion of the Board, be adjusted up or down (even to zero) on
account of performance (personal or Company) as against objectives
approved by the Board. At the recommendation of the Chief
Executive Officer of the Company, the Board shall annually approve
and establish written performance objectives (personal and
2
Company) for Executive. The Board's Organization and Compensation
Committee ("Committee") annually shall assess his performance against
such objectives with the recommendation of the Chief Executive Officer
of the Company, and the Committee and/or the Chief Executive Officer
shall discuss with Executive the results of such assessment.
4. Director of Other Corporations.
-------------------------------
With the approval of the Board, Executive may serve as a
director of one or more corporations other than the Company or a
subsidiary thereof.
5. Termination.
------------
(a) Death or disability: The obligation of the Company to
pay the base salary to Executive provided in Section 2 shall cease
prior to April 5, 1996 (i) upon Executive's death, or (ii) upon
termination of Executive as an officer of the Company, whether by
action of the Board or by the voluntary termination by Executive, in
either case, because Executive shall have become disabled, as
described in Section 5(b) below, more than six months prior to April
5, 1996.
(b) Definition of disability: For purposes of Section
5(a), Executive shall be deemed to have become disabled if a physician
satisfactory to him and to the Company shall, after having examined
him, certify to him and the Company, that he has become disabled in
such manner as to make it unlikely, in the written opinion of such
physician, that he shall be able to render services substantially
as contemplated by Section 1 for at least six consecutive months.
No such determination shall be made without at least ten (10)
days' prior written notice to Executive
3
and such determination shall not become effective to terminate
theCompany's obligations to him hereunder until he has been disabled
for six months or six months from the date of notice to him, whichever
occurs later, but in no event shall such period of disability extend
beyond the term of this Agreement. In the event that Executive
becomes disabled during the term of this Agreement, his base salary
under Section 2 shall be offset by any amounts paid by the Company
under the Company's Short-term Salary Continuance Plan or Executive
Long-term Disability Plan and, upon termination of the Agreement as a
result of his disability or death, Executive shall continue to be
eligible for other benefits generally offered to disabled or deceased
executives pursuant to the benefit plans and programs of the Company.
(c) Material Default or voluntary resignation: The
obligation of the Company to pay the base salary to Executive pursuant
to Section 2 and his eligibility to continue to participate in
incentive compensation plans and programs and benefit and welfare
plans and programs pursuant to Section 3 shall cease prior to April 5,
1996, in the event (i) the Board acts to
terminate Executive as an officer of the Company for cause due to
Executive's material default of his obligations, wilful misconduct, or
gross negligence (other than due to his physical or mental
disability), determined as provided in Section 5(d) below, or (ii)
Executive voluntarily resigns and leaves the Company.
(d) Definition of material default: The Company shall not
terminate its obligations pursuant to Section 5(c) (i) on account of
Executive's material default, wilful misconduct, or
4
gross negligence, unless it shall have first given him notice of its
intention to do so, specifying the nature of his material default,
wilful misconduct, or gross negligence and unless, within a period of
thirty days after his receipt of such notice, Executive shall have
failed to remedy such material default, wilful misconduct, or gross
negligence.
(e) Effect of voluntary resignation: In the event
Executive voluntarily resigns as described in Section 5(c) (ii), all
obligations of the Company to Executive pursuant to this Agreement
shall cease except as provided in subsections (f), (g) and (h) of
Section 9, it being agreed that the Company's obligations to Executive
for incentive compensation, if any, whether payable in cash or shares,
shall be determined as provided in the applicable incentive
compensation plan or plans.
(f) Termination without cause: In the event that, prior to
April 5, 1996, for any reason other than termination, whether by
the Company or by Executive, pursuant to either Section 5(a) or 5(c),
the Board shall exercise its authority, in its sole and absolute
discretion, to remove Executive as an officer of the Company, he may
resign as an officer and employee of the Company. Regardless of when
actually signed, such resignation shall be effective as of the time of
such exercise of authority by the Board, and shall not be deemed to be
subject to Sections 5(a) or 5(c) or otherwise to be a breach of
the Agreement. Upon so resigning, (i) Executive shall be entitled
to receive, until April 5, 1996, (x) the same base salary
e was receiving at the time of such resignation (but not less
than at the aforesaid annual minimum
5
rate), and (y) (unless the Board shall otherwise specify as provided
below) the incentive compensation and benefits that are applicable to
him as described in Section 3, and (ii) Executive shall be deemed for
purposes of clause (f) (i) above, to continue as an officer and
employee of the Company until April 5, 1996, at such rate of base
salary and level of benefits.
(g) Modification: The Company shall provide to Executive
the incentive compensation and benefits pursuant to subclause (f) (i)
(y) above unless any of such is modified by any of the following
actions which the Board, in its sole and absolute discretion,
determines incident to its removal of Executive: (i) the Board shall
determine the amount, if any, of Executive's annual bonus and the
nature and extent of his perquisites; (ii) the Board
may (x) cause the reduction or forfeiture of the amount of money or
the number of shares, as the case may be, theretofore conditionally
awarded to him pursuant to any long-term incentive compensation plan,
in which he is a participant at the time of his resignation, that have
not by that time become vested and payable or deliverable to him in
accordance with the terms of the plan provided, however, that 5,000
shares of the Company's common stock heretofore conditionally awarded
to Executive as Senior Vice President and Chief Financial Officer of
Mallinckrodt Group Inc. may not be reduced or forfeited by action of
the Board under this Section 5(g); and/or (y) terminate or withhold
any new, additional, or future award(s) to Executive under the plan;
and (iii) to the extent the applicable stock option plan permits, the
Board may lengthen the period of time during which he may exercise any
stock
6
options(s) granted to him and exercisable at the time of his
resignation.
6. Noncompete; Mitigation. Executive agrees that should he
resign as an officer and employee of the Company or should his
employment as such otherwise be terminated pursuant to either Section
5(c) (ii) or 5(f), he will not, at any time thereafter until April 5,
1996, become an employee, director, or proprietor of, or consultant
to, or partner in, any entity that is then or thereafter becomes a
substantial competitor of the Company or any of its wholly-owned
subsidiaries, or that he knows has the
intention of becoming such a competitor, in respect of any significant
product line or lines. Executive further agrees that he shall
terminate such competitive activity within thirty days after receipt
by him of notice from the Company specifying the nature of such
competitive activity and demanding such termination. In the event
Executive breaches either or both of the foregoing sentences of this
section 6, he shall be deemed to be in material default of his
obligations under this agreement, and the Company may pursue such
legal and equitable remedies as it deems appropriate to protect the
interests of the Company including, without limitation, the
termination without further notice to Executive of (i) any payment of
cash or shares being made or scheduled to be made pursuant to Section
5(f) (i) (whether or not modified pursuant to Section 5(g)), and (ii)
Executive's deemed status as an officer and employee pursuant to
Section 5(f) (ii). In addition, any salary or other remuneration
received by Executive after such resignation or termination until
April 5, 1996, from any
7
entity (regardless whether it is a substantial competitor of the
Company or any of its wholly-owned subsidiaries in respect of any
significant product line or lines), shall be applied to offset and
reduce the amount of any obligation due or claimed to be due Executive
including but not limited to the base salary payable to Executive
during such period.
7. Legal Disability. Any payment(s) required to be made by
the Company pursuant to this Agreement to a person who is under a
legal disability may be made by the Company to or for the benefit of
such person in such of the following ways as the Company shall
determine: (a) directly to such person (b) to the legal
representative of such person, (c) to some near relative of such
person to be used for the latter's benefit, or (d) directly in payment
of expenses in support, maintenance or education of such person. The
Company shall not be required to see to the application by any third
party of any payments made pursuant to the immediately-preceding
sentence. Except as otherwise provided in said sentence, all payments
made by the Company, pursuant to this Agreement, shall be made to
Executive in person or in care of his address for the purpose of
notice in Section 8.
8. Notices. Notices given pursuant to this Agreement shall be
in writing by United States certified mail. Until Executive notifies
the Company to the contrary, notices to him shall be addressed to him
at 2849 Lake Diane Court, New Brighton, Minnesota 55112. Until the
Company notifies Executive to the contrary, notices to the Company
shall be addressed to: Corporate Secretary,
8
Mallinckrodt Group Inc., 7733 Forsyth Boulevard, St. Louis, Missouri
63105.
9. Miscellaneous.
(a) This Agreement is executed by the parties at the
principal office of the Company in St. Louis, Missouri. All
questions arising in respect to this Agreement, including those
pertaining to its validity, interpretation and performance, shall be
determined in accordance with the laws of the State of Missouri.
(b) This Agreement may be executed in two counterparts, each
of which shall have the force and effect of an original.
(c) This Agreement shall be binding upon all persons
entitled to receive payments hereunder, and their respective heirs,
executors, administrators and legal representatives, and upon the
Company, its successors and assigns.
(d) This Agreement supersedes all previous agreements
between the Company and Executive, both verbal and written, excluding,
however, Executive's Contingent Employment Agreement dated April 4,
1994, his Gross-Up Agreement dated April 4, 1994 and as amended from
time to time, and any confidentiality or invention and secrecy
agreement to which Executive is a party with the Company or any
subsidiary of the Company.
(e) If any provision of this Agreement is for any reason
invalid or unenforceable, such invalidity or illegality shall not
affect the remaining provisions. Rather, each provision shall be
fully severable and the Agreement shall be construed and enforced as
if any invalid or illegal provision had not been included.
(f) The Company confirms that, subject to law, it shall
9
provide to Executive, at its expense, the cost of legal defense of
Executive due to any suit or claim brought against him in his
capacity as a director and/or officer of the Company or of any wholly-
owned subsidiary thereof. In addition, the Company shall also
continue to include Executive among those covered by the Company's
director and officer liability insurance, so long as such insurance is
available and the Company elects to have such insurance; provided,
however, that the unavailability of such insurance coverage or the
Company's discontinuance of such insurance shall in no way limit,
reduce, or otherwise affect Executive's rights to indemnification from
the Company in accordance with law. To the extent the costs of legal
defense or indemnification are not provided to Executive by any joint
venture in which, at the request of the Company, he serves as a
director and/or officer, on account of any suit or claim against him
in his capacity as a director and/or officer of such joint venture,
the Company agrees to provide such costs of defense and
indemnification to him, to the fullest extent permitted by law.
IN WITNESS WHEREOF, the Company has caused these presents to be
signed on its behalf and Executive, to evidence his acceptance hereof,
has hereunto set his hand and seal as of the day first above-written.
Mallinckrodt Group Inc.
By C. R. HOLMAN
_____________________________________
C. R. Holman
President and Chief Executive Officer
MICHAEL A. ROCCA
_____________________________________
Michael A. Rocca