Exhibit 10.15(b)
CONSULTING AGREEMENT
THIS AGREEMENT, made on May 21, 1997 and effective as of the 1st
day of July, 1997, by and between MALLINCKRODT INC., a New York
corporation ("Mallinckrodt"), with principal offices at 7733 Forsyth
Boulevard, St. Louis, MO 63105, and ROBERT G. MOUSSA ("Consultant" or
"Moussa"), residing at 16191 Wilson Manor Drive, Chesterfield,
Missouri 63005.
WHEREAS, Consultant is an expert in the area of international
medical marketing and development and has been instrumental as an
executive employee of Mallinckrodt in developing these markets for a
number of years; and
WHEREAS, Mallinckrodt and Moussa are interested in establishing
a consulting relationship for a period of twenty (20) months
following Moussa's resignation from executive employment on June 30,
1997 to provide such consulting services to Mallinckrodt under the
terms and conditions set forth in this Agreement; and
WHEREAS, Mallinckrodt and Moussa have entered into an Agreement
(hereinafter the "Termination Agreement") governing the terms and
conditions of Moussa's resignation from executive employment and
release of any and all claims which may have arisen as a result of
his executive employment or resignation therefrom;
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements hereinafter
contained, the parties hereby mutually agree as follows:
1. This Agreement shall commence on July 1,1997, and continue
for a period of twenty (20) months thereafter, ending on
February 28, 1999 (the "Term").
Mallinckrodt's obligation to Consultant and Consultant's
obligation to Mallinckrodt shall terminate prior to February 28,
1999, only in the event of Consultant's death or, if Mallinckrodt
determines that Consultant is in default of any of his obligations
under this Agreement or the Termination Agreement between
Mallinckrodt and Consultant or is guilty of wilful misconduct or
gross negligence in the performance of his consulting services.
2. During the Term, Consultant shall serve as a consultant for
Mallinckrodt in connection with projects and assignments
specifically given to Consultant by Mr. C. R. Holman as
Chairman and Chief Executive Officer of Mallinckrodt or his designee,
as mutually agreeable to Mallinckrodt and Moussa as to both
substantive content and as to commitment of time and resources by
Moussa.
3. In consideration for the consulting services to be provided by
Consultant hereunder and the confidentiality covenant set forth in
Paragraph 6, in addition to those expenses set forth in Paragraph 4
of this Agreement, Mallinckrodt shall pay as a consulting fee to
Moussa the sum of Fifteen Thousand Three Hundred Thirty-Three Dollars
and Thirty-Three Cents ($15,333.33) on a twice per month basis
commencing on or about July 15, 1997 and continuing through February
28, 1999 in exchange for his providing any services as needed or
requested pursuant to this Agreement between Mallinckrodt and Moussa.
Moussa understands and agrees that if he secures new employment
during this twenty (20) month consultancy period, the Term shall not
be shortened or otherwise affected and Mallinckrodt agrees it shall
represent to any such new employer that the consulting agreement will
not conflict with the new employment. All payments under this
Agreement shall be paid to Moussa in accordance with Mallinckrodt's
regular payroll schedule for its salaried employees and Mallinckrodt
shall withhold any and all payroll taxes which it determines to be
appropriate, if any.
Mallinckrodt will continue to provide secretarial services and
voice and phone mail and E-mail services to Moussa during this twenty
(20) month consultancy period.
Further, Mallinckrodt will continue to provide to Moussa,
subject to the terms and conditions of the applicable employee
benefit plans, including executive benefit plans, all employee and
executive benefits to which he was entitled as an employee of
Mallinckrodt through the twenty (20) month consultancy agreement
period except that all such benefits entitlements shall cease
immediately if Moussa commences new employment of any type with any
person or entity before the date of conclusion of the twenty (20)
month consultancy agreement. So long as Moussa continues to receive
these executive benefits, he will be required to provide all
contributions and/or deductions customarily required of all other
executive employees in accordance with the terms of the plans, as
currently in effect or as may be subsequently implemented by
Mallinckrodt, and authorizes deduction of all required contributions
for these coverages from any payments provided pursuant to this
Paragraph. At the conclusion of the Term, COBRA Continuation Coverage
shall be made available to Moussa thereafter for eighteen (18) months
at the cost of 102% of coverage contributions, in accordance with the
terms of the Mallinckrodt health care plan which covered Moussa at
the end of the Term. At the conclusion of the Term, Moussa shall be
entitled to convert the basic life insurance coverage to his
ownership pursuant to and in accordance with the terms and conditions
of the basic life insurance policy agreement. Moussa agrees and
acknowledges that he shall have no entitlement to participate in and
accrue benefits under the Mallinckrodt Inc. Retirement Plan,
Investment Plan for Employees of Mallinckrodt Inc., the Supplemental
Benefit Plan for Participants in the Mallinckrodt Inc. Retirement
Plan, the Supplemental Executive Retirement Plan of Mallinckrodt Inc.
or any other retirement plan maintained by Mallinckrodt or its
affiliate after June 30, 1997 and specifically waives any rights to
participate in those plans after
June 30, 1997.
4. If Moussa incurs any out-of-pocket expenses in the rendition of
services under this Agreement, Mallinckrodt shall reimburse
Consultant for the amounts of such reasonable out-of pocket travel
costs and expenses actually incurred by Moussa. Payment for such
costs and expenses shall be made within fifteen (15) days following
receipt by Mallinckrodt of a written statement detailing such costs
and expenses which will be supported by accurate documentation upon
approval thereof by C.R. Holman.
5. Consultant represents and warrants to Mallinckrodt that he has
the right to enter into this Agreement without breaching or violating
any fiduciary, contractual or statutory obligations owed to a third
party. Consultant shall cooperate and work with Mallinckrodt in
connection with his activities under this Agreement and shall keep
Mallinckrodt informed of his activities as may be required by
Mallinckrodt.
6. Consultant shall not, unless expressly authorized by
Mallinckrodt to do so, either during or after completion of his
services hereunder, disclose to any third party, use or publish
information which is secret or confidential to Mallinckrodt. Such
information, it is understood, includes, but is not limited-to,
knowledge and data relating to processes, products, machines,
compounds and compositions, formulae, research efforts, business
plans and marketing, sales, financial, customer and supplier
information and any other information originated, owned, controlled
or possessed by Mallinckrodt or any of its subsidiaries regarding its
businesses. Consultant shall consider information originated, owned,
controlled or possessed by Mallinckrodt or any of its subsidiaries,
which is not disclosed in printed publications stated to be available
for distribution outside Mallinckrodt, as being secret and
confidential to Mallinckrodt or its subsidiaries. In instances
wherein doubt exists in Consultant's mind as to whether information
is secret or confidential to Mallinckrodt or any of its subsidiaries,
Consultant shall request an opinion, in writing, from Mallinckrodt's
General Counsel. Items (including, but not limited to, products,
data sheets, reports, memoranda, notes, records, plots, sketches,
plans and other tangible items) which are in the possession of
Consultant or to which he is given access as a result of his contacts
and services with Mallinckrodt or its subsidiaries shall, at all
times, be recognized as the exclusive property of Mallinckrodt. At no
time, without express authorization from Mallinckrodt, shall
Consultant make such items available to third parties and, upon
termination or expiration of Consultant's Agreement with
Mallinckrodt, Consultant shall deliver promptly to Mallinckrodt any
such items (including copies thereof) which are in his possession.
7. The fees to be paid to Consultant pursuant to Paragraphs 3 and 4
of this Agreement shall be full consideration and compensation for
Consultant's services and for the confidentiality and obligations of
Consultant to Mallinckrodt hereunder.
8. Consultant shall be regarded as an independent contractor in all
matters pertaining to services performed by Consultant hereunder, and
(a) Consultant shall have no authority to assume, create or incur any
liability or any obligation of any kind (express or implied) against
or on behalf of Mallinckrodt or any of its subsidiaries, and (b)
Mallinckrodt shall defend, indemnify and hold harmless Consultant
from and against any claims, damages, injuries loss and expense,
including reasonable attorneys' fees incurred by Consultant or made
or asserted against Consultant by any third party or foreign power or
government in connection with, relating to or arising out of the
consulting services provided hereunder, except in the case of gross
negligence or wilful misconduct of Consultant, (c) Consultant agrees
to obtain the appropriate federal identification number, if
applicable, shall be responsible for all gross receipts, income,
social security and other state and federal taxes for fees he is paid
under this Agreement and Consultant agrees to provide to Mallinckrodt
such proof as it determines is appropriate that such taxes have been
paid and acknowledges that he will not be treated as an employee for
income, employment tax or other purposes, (d) Consultant shall not be
under the specific direction of Mallinckrodt in the performance of
his services, (e) Consultant shall be under no obligation to work any
specific number of hours or at any specific place except as mutually
agreed with Mallinckrodt, (f) Consultant retains the right to render
similar services for any other person or entity, (g) Mallinckrodt
agrees that it shall not have the right to control the details,
manner or means by which Consultant performs his services, (h)
Consultant agrees to secure any licenses or permits necessary for him
to render services hereunder, and (i) Consultant shall provide his
own supplies, facilities and such assistants as he determines is
necessary to perform consulting services under this Agreement.
9. This Agreement shall be construed according to the laws of the
State of Missouri. This Agreement may only be amended in writing
which is agreed to by both of the Parties hereto.
10. Nothing contained in this Agreement shall be construed to
require the commission of any act contrary to the 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.
11. 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 evidence the
measure of damages that may be sought in any action by Mallinckrodt
for breach or specific performance of the terms stated.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement
on the date first above written.
MALLINCKRODT INC.
By:C. R. HOLMAN
----------------------------
C. R. Holman
Chairman and Chief Executive Officer
ACCEPTED:
BY:ROBERT G. MOUSSA
---------------------
Robert G. Moussa
DATED: May 21, 1997