Exhibit 10.15(a)
AGREEMENT
This Agreement is entered into between Robert G. Moussa and
Mallinckrodt Inc., subject to and upon approval of the Board of
Directors of Mallinckrodt Inc., or as delegated to an authorized
Committee thereof ("MI" or "Mallinckrodt") pursuant to Moussa's
voluntary tender of his irrevocable resignation of the position and
office of President, International effective June 30, l997.
It is the desire of the parties, among other things, to state the
terms and conditions of the severance of their relationship as
executive employee and employer undertaken on June 30, 1997 and to
provide for, inter alia, a consulting agreement between Mallinckrodt
and Moussa in exchange for which he makes certain pledges specified
below.
NOW THEREFORE, in consideration of the promises and the mutual
covenants and representations made herein, the sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. I, Robert G. Moussa, voluntarily agree to resign from employment
from MI effective June 30, 1997. Except as otherwise provided in
this Agreement, I shall not be entitled to any wages, benefits
or other forms of remuneration or compensation from Mallinckrodt
after June 30,1997. I acknowledge that I have received all
compensation and employee benefits to which I was entitled
during my employment. An announcement of my resignation and the
timing of such announcement shall be agreed upon in writing and
made at a date no later than the date of my resignation,
June 30, 1997.
2. I agree that in exchange for promises which I make in this
Agreement, MI will provide me with the following additional
compensation and benefits beyond those amounts to which I am
otherwise entitled provided that I agree to give the Release and
make the promises described below:
(a) A Consulting Agreement entered into with MI and attached
hereto for a period of twenty (20) months commencing
July 1, 1997 providing compensation and benefits as
specifically provided under the terms and conditions of
that Consulting Agreement.
(b) Qualified Retirement And SERP Plan Benefits. MI agrees to
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pay and arrange for the payment from the Retirement Plans
described below, to me the sum of One Million Four
Hundred Thousand Dollars ($ 1,400,000.00) which shall be
comprised of (i) the lump sum present value of my accrued
benefit determined as of June 30, 1997 and payable to
me or on my behalf as of that date from the tax qualified
Mallinckrodt Inc. Retirement Plan, (ii) the lump sum
present value of my accrued benefit determined as of
June 30, 1997 pursuant to the actuarial assumptions
applicable under those plans and in accordance with their
terms in which I participated as an employee of
Mallinckrodt, Gmbh and all other MI non-domestic
subsidiaries regardless of whether such benefits
are payable as a lump sum and with such lump sum present
value calculation to be verified by an independent pension
benefit consultant selected by me. If the difference in
such calculation is greater than Five Thousand Dollars
($5,000.00), then a third calculation shall be undertaken
at Mallinckrodt Inc.'s expense by an independent pension
benefit consultant mutually acceptable to Mallinckrodt and
me and such calculation shall govern and (iii) although I
am ineligible for a benefit under the Company's
Supplemental Executive Retirement Plan ("SERP"), an amount
with respect to the SERP which amount, when combined with
the amounts determined under (i) and (ii) above, shall
equal One Million Four Hundred Thousand Dollars
($1,400,000.00). This payment shall be made as soon as
possible after June 30, 1997 but no later than three (3)
months after the date of my executive employment
resignation. I agree that I shall not be entitled to accrue
any further benefits under the SERP, the Mallinckrodt Inc.
Retirement Plan, the Supplemental Benefit Plan for
Participants in the Mallinckrodt Inc. Retirement Plan or
any other retirement plan maintained by MI during the
period of my Consulting Agreement. However, MI agrees that
I will be entitled to receive an allocation of Supermatch
contribution (whenever made) under the Investment Plan for
Employees for Mallinckrodt Inc. for the Year ending
June 30, 1997 in accordance with Plan terms, if any such
contribution is made to the Plan.
(c) Outplacement. Executive outplacement services during the
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twenty (20) month consultancy period, including, but not
limited to, secretarial services and voice and phone mail
and E-mail services.
(d) Management Incentive Compensation Plan. An amount equal to
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100% of the Fiscal Year 1997 Management Incentive
Compensation Plan using the same formula as applicable to
other participants in the Plan but paid before the end of
the Fiscal Year 1997, and to the extent possible on the
date awarded or as soon as practicable based upon projected
Mallinckrodt performance with subsequent reimbursement by
Moussa of the excess of any payment made based upon
projected performance over the value actually due based
upon actual Mallinckrodt Fiscal Year performance.
(e) Long Term Incentive Plan. All Long Term Incentive Plan
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payments shall be made using the same formula as applicable
to other participants in the Plan and in the same manner.
All Long Term Incentive Plan payments shall be made as soon
as practicable after calculation of the formula at the end
of the Fiscal Year as set forth in the Plan.
(f) Stock Options. Subject to approval by the Board of
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Directors, MI shall hereby provide additional periods
during which I may exercise certain stock options or
additional payments with respect to stock options as
described below:
(i) At the time of my termination of employment, I will be
vested in and eligible to exercise the following
options for purchase of shares of the Company's common
stock:
GRANT NUMBER OF OPTION ORIGINAL
DATE SHARES PRICE EXPIRATION DATE
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02/20/90 5,625 19.18 02/20/2000
02/20/90 5,625 19.18 02/20/2000
12/04/90 5,625 22.26 12/04/2000
12/04/90 5,625 22.26 12/04/2000
12/03/91 2,650 36.80 12/03/2001
12/03/91 2,650 36.80 12/03/2001
12/01/92 2,550 38.03 12/01/2002
12/01/92 2,550 38.03 12/01/2002
12/15/92 3,450 37.68 12/15/2002
12/15/92 3,450 37.68 12/15/2002
11/30/93 6,750 35.01 11/30/2003
11/30/93 6,750 35.01 11/30/2003
12/13/94 8,250 29.97 12/13/2004
12/13/94 8,250 29.97 12/13/2004
12/12/95 8,250 34.79 12/12/2005
In exchange and as additional consideration for my
execution of this Agreement, MI hereby provides Moussa
with an additional period of time during which each of
these options may be exercised. Subject to the
aforementioned approval, the terms of the above
described options are hereby further amended to
provide that they may be exercised on any date through
earlier of (I) their stated original expiration date
(determined without reference to my termination of
employment) or (II)February 28, 1999. All such
options, if not exercised on or before such date shall
expire on February 28, 1999.
(ii) At the time of my termination of employment, I was not
vested in and was not eligible to exercise, but would
have become vested in and would have become eligible
to exercise the following options for purchase of
shares of the Company's common stock had I remained
employed by the Company through February 28, 1999:
NUMBER ORIGINAL
GRANT OF VESTING OPTION EXPIRATION
DATE OPTIONS DATE PRICE DATE
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12/12/95 8,250 12/12/97 34.79 12/12/2005
08/20/96 6,200 08/20/97 38.43 08/20/2006
08/20/96 6,200 08/20/89 38.42 08/20/2006
In exchange and as additional consideration for
Moussa's execution of this Agreement and subject to
the foregoing approval, MI will provide to me an
additional payment with respect to each of these
options equal to the excess, if any, of (i) the price
at which the Company's common stock closes on the New
York Stock Exchange on any date that I may designate
in writing to the Company with respect to
participation (which designated date must be
communicated in writing to MI's General Counsel within
two (2) business days of such date), during the period
commencing with the date on which each of the
aforementioned options would have become vested (i. e.
the Vesting Date) as described above) and ending on
February 28, 1999 over (ii) the exercise price of
these non-vested options. If the closing price of the
Company's common stock as described in the preceding
sentence does not exceed the exercise price of any of
the non-vested options during the period described,
then no payment shall be made under this subparagraph
with respect to such options. Also, if the Executive
does not designate a price determination date in
writing to the Company, which designation is received
within the two (2) day time period described above,
then no payment under this subparagraph (c) shall be
made. Amounts due and payable under this subparagraph,
if any, less applicable federal and state withholding
taxes shall be payable as described in paragraph 2
below.
Payment of the aforementioned amounts shall be made as described
following Moussa's execution of this Agreement and expiration of the
revocation period described in paragraph 7 without Moussa having
revoked this Agreement. All such amounts shall be subject to the
remainder of this Agreement.
(g) Relocation. Mallinckrodt agrees to pay Moussa One Hundred
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Thousand Dollars ($100,000.00), to cover the cost of
relocation to Europe, if he determines during the twenty
(20) month consultancy period to relocate to Europe, unless
such relocation to Europe is based upon new employment
requiring such relocation and the relocation cost is paid
by Moussa's new employer.
I agree that all income and other tax withholding determined by MI to
be applicable shall be deducted from all benefits and compensations
payable hereunder.
3. In exchange for all the benefits described above, I promise on
behalf of myself, my heirs, my assigns and all others to
discharge and release MI and each of its subsidiaries, parent
and affiliated corporations, business entities and employee
benefit plans and all of their past and present directors,
officers, employees, agents and fiduciaries and their successors
and assigns ("Released Parties") from any and all claims, causes
of action or suits which I have or might have or might have had
of whatever nature from the beginning of time, whether they are
known or unknown, that arose, could arise or could be asserted
relating to or arising out of my employment relationship with MI
or the termination of that relationship up through and including
the date of this Agreement or which may relate to any other
facts, actions or circumstances which may have occurred or
existed prior to the date of this Agreement. This Separation and
Release and discharge of claims includes but is not limited to
all claims of whatever type arising under common law, whether in
contract or in tort, and all claims arising under federal, state
or local law and regulation including, but not limited to, all
claims for personal recovery under Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Employee
Retirement Income Security Act of 1974 and all claims for
benefits arising under any employee benefit plan as described in
that Act (except for claims under benefit plans for the benefits
described in paragraph 2), the Americans With Disabilities Act
of 1990, the Age Discrimination in Employment Act of 1967, and
the Family and Medical Leave Act of 1993, the Occupational
Safety and Health Act, the Civil Rights Act of 1866, the Fair
Labor Standards Act of 1938, as amended, the Rehabilitation Act
of 1973, as amended, as well as, but not limited to, any claim,
right or cause of action under the laws of the State of
Missouri, inclusive of the Missouri Human Rights Act, Section
213.010, et seq., R.S.Mo. and the Missouri Service Letter
Statute, Section 290.140, R.S.Mo.; any and all claims for
intentional or negligent infliction of emotional distress,
wrongful or retaliatory discharge, public policy violations,
whistleblower, interference with contract, pain and suffering,
compensatory or punitive damages, service letters, costs,
interest, attorneys' fees and expenses, reinstatement or
reemployment (collectively referred to as "Claims"). I further
waive any right to future employment with MI, its subsidiaries,
parent and affiliated corporations. In further consideration for
the benefits described above, I hereby covenant and agree not to
bring or assert any claim for further recovery, cause of action,
administrative charge, lawsuit or other proceeding for further
recovery against any Released Party related to or arising out of
any Claim. If any court rules that such waiver of rights to
file, or have filed on my behalf, any administrative or judicial
charges or complaints for further recovery is ineffective,
Moussa agrees not to seek or accept any money damages upon the
filing of any such administrative or judicial charges or
complaints. In the event any person brings any claim or action
for further recovery which is contrary to or violates the above
Release and Waiver, then the party defendant to that action
shall be entitled to reimbursement for costs and attorneys' fees
incurred in defense of that claim or action.
4. Moussa agrees that the existence of this Agreement, as well as
the terms and conditions of this Agreement, are confidential and
shall not be made public by him or disclosed by him to any other
person, other than his immediate family, attorney and tax
advisor, or as may be necessary by court order, without the
express written consent of Mallinckrodt. Moussa further agrees
that if he breaks this promise as determined by a Court of law
to keep the existence and terms of this Agreement confidential,
he will become immediately liable to Mallinckrodt for the amount
of pay and benefits actually paid and received by Moussa
pursuant to Paragraph 2, and any costs, including attorneys'
fees, incurred by Mallinckrodt in collecting that amount from
him.
5. Moussa acknowledges his obligations to MI of nondisclosure and
confidentiality pursuant to and as provided in the Consulting
Agreement entered effective July 1, 1997 and executed
simultaneously herewith and as otherwise provided by law. Moussa
agrees to deliver to Mallinckrodt, and not keep or deliver to
anyone else, at any time, any and all records, documents, notes,
memoranda, specifications, devices, including but not limited
to, Mallinckrodt provided storage devices and other property,
including but not limited to any telephones, computers, fax
machines, keys, credit cards and in general, any and all
material relating to Mallinckrodt's business or Confidential or
Proprietary Information furnished to or acquired by him during
the period of his employment with Mallinckrodt. To the extent
any such information is stored on any computer, computer disk,
or any other information storage devices, Moussa agrees to
return such information to Mallinckrodt and not to retain such
information in any fashion except as provided in the Consulting
Agreement and except that Moussa shall be permitted to retain
and use his computer, printer and fax machine during the twenty
(20) month period of the Consulting Agreement and he may elect
to purchase that computer equipment at the conclusion of the
twenty (20) month consultancy for its fair market value.
6. By execution of this Agreement, Robert G. Moussa expressly
waives any and all rights or claims arising under the Age
Discrimination in Employment Act of 1967 ("ADEA") and:
a. I acknowledge that my waiver of rights arising under the ADEA
is in writing;
b. I understand that this waiver refers to rights or claims
arising under the ADEA;
c. I understand that by execution of this Agreement, I do not
waive any rights or claims under the ADEA that may arise
after the date the waiver is executed;
d. I acknowledge that the waiver of my rights arising under the
ADEA is in exchange for the consideration outlined in
paragraph 2 above, which is substantially greater than that
to which I am otherwise entitled;
e. I acknowledge that MI is hereby advising me to consult with
an attorney of my choosing prior to executing this Agreement;
f. I acknowledge that I have been advised by MI that I have a
period of at least twenty-one (21) days from May 21, 1997,
within which to consider this Agreement;
g. I acknowledge that I have been advised by MI that I am
entitled to revoke (if I execute this Agreement) this waiver
of rights arising under the ADEA within seven (7) days after
executing this Agreement and that the wavier will not and
does not become effective or enforceable until the seven (7)
day period has expired;
h. I understand that this waiver has not been requested in
connection with an exit incentive. I further acknowledge
that the compensation and benefits to which I am entitled
hereunder are greater than those which would be provided to
Mallinckrodt employees who are affected by and whose
employment has been or may be terminated as a result of its
Strategic Change Initiative. I acknowledge that my
termination is not part of an exit incentive or group
employee termination program.
i. I agree that if I exercise my right to revoke the waiver
under subparagraph (g), this entire Agreement and its
obligations are null and void and of no effect, and I will
only be entitled to receive MI's normal executive severance
benefit; and
j. I agree that no sums or benefits described in Paragraph 2,
which are in addition to those provided pursuant to standard
severance policy shall be paid or provided until the
revocation period specified in subparagraph (g) has expired.
7. Nothing contained in this Agreement shall be construed to
require the commission of any act contrary to the law or to be
contrary to law, and wherever there is any conflict between any
provision of this Agreement and any present or future statute,
law, governmental regulation or ordinance contrary to which the
parties have no legal right to contract, the latter shall
prevail, but in such event, the provisions of this Agreement
affected shall be curtailed and restricted only to the extent
necessary to bring them within legal requirements. Should
however, Moussa contest the legality of this Agreement or any
part thereof and such challenge by Moussa be sustained in whole
or in part, then Mallinckrodt, at its sole option, may cancel
this Agreement upon written notice to Moussa and any sums paid
by it to Moussa under Paragraph 2, shall be repaid by Moussa to
Mallinckrodt within thirty (30) days of such written notice.
8. Should it be determined by a Court of law that Moussa has
breached any term of this Agreement, all remaining payments
payable by Mallinckrodt under this Agreement will cease, and
Mallinckrodt shall be excused from performance of any and all
other obligations contained in this Agreement. The cessation of
future payments shall not preclude Mallinckrodt from requesting
all other remedies, either at law or equity, including
injunctive relief or otherwise preclude a court of competent
jurisdiction from awarding any other remedy, either at law or
equity, including, but not limited to, restitution, court costs
and attorneys' fees. The parties further agree that the amounts
to be paid to Moussa pursuant to this Agreement shall be the
measure of damages that may be sought in any action by
Mallinckrodt for breach or specific performance of the terms
stated.
9. I agree that the terms of this Agreement constitute the entire
agreement between me and MI regarding the subject matters
covered by it. I agree that in executing this Agreement, I am
not relying upon any representation made by any person and that
I am only relying upon the terms stated in this Agreement by MI.
Any change or addition to this Agreement must be made in writing
and signed by me and MI to be effective. However, I agree that
all compensations and benefits described in this Agreement shall
be paid in accordance with the terms of the Plans under which
they are provided, except as otherwise provided herein or in the
Consulting Agreement.
10. This Agreement is governed by and construed according to the
laws of the State of Missouri.
I HEREBY ACKNOWLEDGE THAT I HAVE READ THIS RELEASE AGREEMENT
CONSISTING OF NINE (9) PAGES AND TEN (10) NUMBERED PARAGRAPHS; FULLY
UNDERSTANDING AND ACCEPTING ALL OF ITS TERMS OF MY OWN FREE WILL; AND
THAT I HAVE HAD AN ADEQUATE OPPORTUNITY TO DISCUSS THIS DOCUMENT WITH
AN ATTORNEY AND HAVE DONE SO OR HAVE VOLUNTARILY ELECTED NOT TO DO
SO.
Date: May 21, 1997 ROBERT G. MOUSSA
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Robert G. Moussa
Date: May 21, 1997 MALLINCKRODT INC.
By: C. RAY HOLMAN
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C. Ray Holman
Chairman and Chief
Executive Officer
STATE OF MISSOURI )
) ss
COUNTY OF ST. LOUIS)
Comes now Robert G. Moussa, who states to me that he has read
and understands the foregoing Separation Agreement and Release and
agrees to and accepts its terms and conditions as a free act of his
own volition.
Sworn to before me this 21st day of May , 1997.
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"NOTARY SEAL"
Christine Bimslager, Notary Public
St. Louis County, State of Missouri
My Commission Expires 9/19/97