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EXHIBIT 10.33
AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
This Agreement and General Release of All Claims ("Agreement")
is entered into by and between Charles M. Mabrey ("You" or "Employee") and
Boston Scientific Corporation ("BSC") as of the latest date of execution by the
parties to this Agreement. This Agreement supersedes and cancels any prior
employment agreements or arrangements You may have entered into with BSC except
for the Employment Agreement ("Employment Agreement") signed by You on May 19,
1987, and attached hereto as Attachment 1. Employee's obligations under the
Employment Agreement shall be in addition or complementary to, and shall not be
superseded, by this Agreement.
In consideration of the mutual covenants, agreements, and
representations contained herein, the adequacy of which is hereby acknowledged,
the parties hereto expressly and intentionally bind themselves as follows:
1. TRANSITION AND ULTIMATE TERMINATION OF EMPLOYMENT
You hereby acknowledge and agree that effective January 1,
1999 ("Transition Date") your position as a full-time Senior Vice President,
Operations, of BSC will transition to that of a part-time employee working one
hundred (100) hours per quarter. You further acknowledge and agree that your
position as Senior Vice President, Operations, of BSC and as an employee of BSC
will end entirely on December 31, 2000, subject to possible earlier termination
as set forth in Paragraph 5(d), below ("Termination Date"). For the period
between the Transition Date and Termination Date, You will continue to perform
the job responsibilities referenced in Paragraph 5(a), below.
2. PAYMENTS BY BSC
(a) For the first twelve-(12) month period (the "First
Twelve-(12) Month Period") immediately following the Transition Date, BSC will
pay to You on each regular payroll cycle the bi-weekly portion of your current
BSC base annual salary of the sum of Two Hundred Seventy Thousand Four Dollars
and Eighty cents ($270,004.80) (i.e., $10,384.80 per bi-weekly payroll cycle),
less applicable payroll withholding for taxes and other applicable deductions.
These payments will be made as compensation for the job responsibilities to be
undertaken by You as referenced in Paragraph 5(a), below.
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(b) For the second twelve-(12) month period (the "Second
Twelve-(12) Month Period") following the Transition Date, BSC will pay to You on
each regular payroll cycle the bi-weekly portion of the sum of Five Thousand
Dollars and no cents ($5,000.00) per quarter (i.e., $769.23 per bi-weekly
payroll cycle), less applicable payroll withholding for taxes and other
applicable deductions. These payments will be made in recognition of and as
compensation for the reduced job responsibilities to be undertaken by You during
the Second Twelve-(12) Month Period, such reduced responsibility to consist
primarily of your provision of transition assistance to your successor(s) on an
as-needed basis. You expressly acknowledge that upon the occurrence of the
Termination Date, You will not be eligible for any payments or benefits in
addition to those described in this Agreement under any existing BSC Severance
Pay Plan and/or Layoff Notification Plan.
(c) To help defray the incremental costs you may incur in
securing health insurance coverage for You and your spouse (over and above your
normal contribution) once your participation in the BSC medical and dental
programs ceases, BSC will pay you within a reasonable period of time after June
30, 2000 a one-time bonus in the gross amount of Seventy Thousand Dollars and no
cents ($70,000.00), which includes a "grossed up" amount to account for tax
obligations you will incur as a result of this payment.
(d) BSC will pay You for all accrued but unused vacation time
through the Termination Date in accordance with applicable Massachusetts law.
3. STATUS OF EMPLOYMENT BENEFITS
(a) The Split Dollar Life Insurance Policy currently in place
on your behalf will remain in place, and all of the terms and
conditions of that Policy will continue to apply.
(b) As of January 1, 1999, you will have the opportunity to
convert the group dependent life insurance coverage you have elected to a
non-group life insurance plan upon meeting applicable eligibility requirements.
(c) You agree and acknowledge that your participation in BSC's
Global Employee Stock Option Plan, if any, Accidental Death and Dismemberment
(AD&D), Business Travel Accident, and Short-Term and Long-Term Disability Plans
will terminate as of your Transition Date; that your accrual of vacation time
under the applicable BSC vacation policy will continue through the Termination
Date and will be based on your scheduled number of work hours; that you will not
be eligible to receive holiday pay; and that your participation in BSC's 401(k)
Plan will continue, based on your scheduled number of work hours, through the
Termination Date. You further agree and acknowledge that you will participate
through the Termination Date in all other benefits and benefit plans in which
you are currently enrolled in accordance with the eligibility accorded part-time
employees who work the number of hours for
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which you have been scheduled and that your participation in and entitlement to
any and all other benefits and benefit plans in which You are currently
enrolled, but which are not otherwise specifically addressed in this Agreement,
terminates according to the same terms and conditions as are available to BSC
employees generally.
(d) For the period January 1, 1999 through June 30, 2000, your
participation in BSC's Medical/Dental Plans shall continue, on the same terms
and conditions as are made available to BSC employees generally, as provided by
the Consolidated Omnibus Budget and Reconciliation Act of 1985 ("COBRA"). You
may cancel such coverage at any time prior to June 30, 2000, should you desire
to do so. BSC will pay the employer's portion of the insurance premium for any
such medical/dental coverage elected through June 30, 2000. You acknowledge that
the terms of the BSC Medical/Dental Plans offered to BSC employees generally may
change from time to time, and that your coverage will be subject to any such
change.
(e) Any unvested portions of previously awarded stock option
grants will continue to vest through the Termination Date and will become
exercisable under the terms and conditions contained in the applicable plan
documents.
(f) BSC will arrange to transfer to you as a gift, effective
January 1, 1999, ownership of the leased vehicle currently in your possession
through BSC's leasing program. Any tax obligations associated with the value of
this transfer will be your personal responsibility.
4. EXPENSE REIMBURSEMENT
BSC will reimburse you in accordance with usual BSC policy for
all unreimbursed business travel and other out-of-pocket expenses incurred by
you through the Termination Date in the performance of your duties as an
employee of BSC. Such expenses must be submitted no later than the Termination
date.
5. PART-TIME EMPLOYMENT FOR THE PERIOD JANUARY 1, 1999 THROUGH
DECEMBER 30, 2000.
(a) As described in Paragraph 1, above, Employee shall be
employed by BSC as a part-time employee through the Termination Date. Attached
to this Agreement as Attachment 2 is a description of the responsibilities to be
performed by Employee through the Termination Date.
(b) At all times through the Termination Date, Employee shall
observe all policies and guidelines established by BSC with respect to its
employees, including but not limited to the Company's Code of Conduct and
Employee Information Guide.
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(c) Prior to the Termination Date, Employee shall not work for
or otherwise provide services for any other business, entity or person on a
full-time basis or in any other way which would interfere with his ability to
fully perform his part-time employment responsibilities in accordance with this
Section 5.
(d) Notwithstanding anything to the contrary in this
Agreement, at any time prior to the Termination Date, BSC may change Employee's
Termination Date to a date earlier than December 31, 2000 immediately upon
notice to Employee if it determines that any of the following has occurred: (i)
Employee has not signed and returned this Agreement prior to the end of the
21-day period referenced in Section 6(b), or has revoked or rescinded this
Agreement pursuant to Section 7 of this Agreement; (ii) Employee has not
cooperated in good faith to fulfill his obligations and agreements under
Sections 5(a), (b) and (c), above, through and including the Termination Date;
or (iii) Employee has materially breached any of his other obligations or
agreements under this Agreement or the Employment Agreement.
(e) If Employee's employment with BSC ends prior to December
31, 2000 as set forth in Section 5(d), above, in addition to any other remedies
available to BSC: (i) BSC may cease making any payments under Sections 2(a), (b)
and (c), above, provided, however, that such cessation of payments or other
consideration shall neither nullify nor otherwise affect the enforceability of,
or any of Employee's obligations under, this Agreement; and (ii) any reference
in this Agreement to "Termination Date" shall refer to such earlier Termination
Date.
6. RELEASE BY EMPLOYEE
(a) Employee hereby releases and forever discharges BSC and
its subsidiaries, affiliates, successors, and assigns and the Directors,
officers, shareholders, employees, representatives and agents of each of the
foregoing (collectively "Releasees") of and from the following as of the date of
execution of this Agreement:
(i) Any and all claims, demands, and liabilities
whatsoever of every name and nature (other than those
arising directly out of this Agreement), including
(without limitation) those with respect to Employee's
employment or the terms and conditions or termination of
his employment, benefits or compensation which Employee
has against Releasees, or ever had;
(ii) As included in the above, without limitation, all
claims known or which reasonably could have been known for
tortious injury, breach of contract, and wrongful
discharge (including without limitation, any claim for
constructive discharge), all claims for infliction of
emotional distress, all claims for slander, libel, or
defamation of character, all claims for retaliation and
all claims for attorneys' fees, as related to Employee's
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employment by Releasees, or the terms and conditions or
termination of his employment, benefits, or compensation;
and
(iii) Employee specifically releases and forever
discharges Releasees from any and all claims based upon
any allegation of employment discrimination, including
(without limitation) discrimination on the basis of race,
color, sex, age (including without limitation any claim
pursuant to the Federal Age Discrimination in Employment
Act), religion, disability or national origin.
(b) Employee acknowledges that he has been given the
opportunity, if he so desires, to consider this Agreement for 21 days before
executing it. If Employee executes this Agreement within less than 21 days of
the date of its delivery to him, he acknowledges that such decision was entirely
voluntary and that he had the opportunity to consider this Agreement for the
entire 21-day period. Employee agrees that any modifications, material or
otherwise, made to this Agreement do not restart or affect in any manner the
original twenty-one (21) day consideration period.
7. RESCISSION
BSC acknowledges that for a period of seven (7) days from the
date of the execution of this Agreement, Employee shall retain the right to
revoke this Agreement by written notice to Boston Scientific Corporation, c/o
Robert G. MacLean, Senior Vice President, Human Resources, One Boston Scientific
Place, Natick, MA 01760, and that this Agreement shall not become effective or
enforceable until the expiration of such revocation period. Therefore, no BSC
obligations will be met and payments called for by BSC shall not be made under
Sections 2(a), (b) and (c), above, until the expiration of such revocation
period.
8. NO DAMAGES SOUGHT; FUTURE ACTIONS
(a) Employee represents and states that he has not and will
not seek any damages in connection with any complaints or charges filed against
Releasees with any local, state or federal agency or court, and Employee agrees
that if any complaint or charge is filed on his behalf, he shall take all
reasonable steps necessary to refuse any compensation in connection with such
claimed damages.
(b) In addition, to the extent permitted by applicable law,
Employee represents and warrants that he has not previously recommended or
suggested, and he will not recommend or suggest, to any federal, state or local
governmental agency or any potential claimants against or employees of the
Releasees, that they initiate any claim or lawsuit against the Releasees, and,
again to the extent permitted by applicable law, Employee will not voluntarily
aid, assist or cooperate with any claimants against or employees of the
Releasees in bringing such claims or lawsuits; provided, however, that nothing
in this Paragraph 8 will be
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construed to prevent Employee from giving truthful testimony in response to
direct questions asked pursuant to a lawful subpoena or other legal process
during any future legal proceeding involving the Releasees.
9. NO LIABILITY ADMITTED
Employee acknowledges that neither BSC's execution of this
Agreement nor BSC's performance of any of its terms shall constitute an
admission by BSC of any wrongdoing on Releasees' parts with respect to Employee
in connection with any matter, including (without limitation) the matters set
forth in Paragraph 6, above.
10. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
(a) Employee shall keep entirely secret and confidential, and
shall not disclose to any person or entity, in any fashion or for any purpose
whatsoever, any information that is: (i) not available to the general public;
and/or (ii) not generally known outside BSC, regarding Releasees to which he has
had access during the course of his employment by BSC, including (without
limitation) any information relating to BSC's business or operations; its plans,
strategies, prospects or objectives; its products, technology, processes or
specifications; its research and development operations or plans; its customers
and customer lists; its manufacturing, distribution, procurement, sales,
service, support and marketing practices and operations; its financial
conditions and results of its operations; its operational strengths and
weaknesses; and its personnel and compensation policies, procedures and
transactions.
(b) Employee agrees to return to BSC, on or before the
Termination Date, documents or media of whatever nature, including summaries
containing any of the notes or data referred to in the immediately preceding
paragraph whatsoever, including all documents, data, material, details and
copies thereof in any form. Employee agrees to return to BSC, on or before the
Termination Date, all BSC property, including (without limitation) all computer
equipment, property passes, keys, credit cards, business cards, identification
badges, and all sample and demonstration products.
11. NO DETRIMENTAL COMMUNICATIONS
Employee agrees that he will not disclose or cause to be
disclosed any negative, adverse or derogatory comments or information about
Releasees, about any product or service provided by Releasees, or about
Releasees' prospects for the future. Furthermore, Employee hereby represents to
BSC that he has made no such communication to any public official, to any person
associated with the media, or to any other person or entity. Employee
acknowledges that BSC relies upon this representation in agreeing to enter into
this Agreement.
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12. FUTURE ASSISTANCE
BSC may seek the assistance, cooperation or testimony of
Employee in connection with any investigation, litigation, patent application or
prosecution, or intellectual property or other proceeding arising out of matters
within the knowledge of Employee and related to his position as an employee of
BSC, and in any such instance, Employee shall provide such assistance,
cooperation or testimony and BSC shall pay Employee's reasonable costs and
expenses in connection therewith.
13. HIRING OF BSC EMPLOYEES
During the period beginning as of the date Employee signs this
Agreement and for twenty-four (24) months thereafter, Employee shall not,
directly or indirectly, attempt to hire away any individual who was an employee
of BSC or any of the Releasees within the twelve (12)-month period immediately
preceding the Transition Date, assist in the hiring away of any such employee by
himself or any other person or entity, or encourage any such employee to
terminate his or her employment with BSC, whether directly or indirectly, unless
the President of BSC or his designee shall have given prior written approval.
14. POST-SEPARATION RESTRICTION
During the period beginning as of the date Employee signs this
Agreement, and for twenty-four (24) months thereafter, Employee agrees that he
shall not, directly or indirectly, without the written consent of an Executive
Officer of BSC, engage in any activity in the area of medical device
manufacturing which is competitive with BSC as it relates to any of the work
Employee performed or with which Employee was familiar as an employee of BSC.
15. CONFIDENTIALITY
Employee agrees to keep confidential the existence of this
Agreement, as well as all of its terms and conditions, and not to disclose to
any person or entity the existence, terms or conditions of this Agreement except
to his attorney, financial advisors and members of his immediate family provided
they agree to keep confidential the existence, terms and conditions of this
Agreement. In the event the Employee believes he is compelled by law to divulge
the existence, terms or conditions of this Agreement, he will notify BSC (by
notifying BSC's Legal Department) of the basis for the belief before actually
divulging the information. Employee hereby confirms that as of the date of
signing this Agreement, he has not disclosed the existence, terms or conditions
of this Agreement, except as permitted by this Paragraph 15. In the event of a
breach of this Agreement or the Employment Agreement, Employee shall repay to
BSC all of the amounts paid under Sections 2(a), (b) and (c), above, and will be
liable, moreover, for any damages which a court may determine and will be
subject to injunctive relief, damages and any other relief which a court may
award.
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16. GOVERNING LAW, SEVERABILITY
This Agreement is entered into and shall be construed under
the laws of the Commonwealth of Massachusetts without regard to its conflicts of
law rules. In the event any provision of this Agreement is determined to be
illegal or unenforceable by a duly authorized court of competent jurisdiction,
then the remainder of this Agreement shall not be affected thereby, it being the
intention of the parties that each provision of this Agreement shall be valid
and enforceable to the fullest extent permitted by law. However, if any portion
of the general release language in Paragraph 6, above, were ruled to be
unenforceable for any reason, Employee shall return the consideration provided
under Sections 2(a), (b) and (c), above, to BSC upon demand by BSC, which demand
shall be made if Employee were to file any claim against BSC in violation of
this Agreement, especially Paragraph 8.
17. WAIVERS, AMENDMENTS
The failure of either party to require the performance of any
term or obligation of this Agreement, or the waiver by either party of any
breach of this Agreement, shall not prevent any subsequent enforcement of such
term or obligation and shall not be deemed a waiver of any subsequent breach. No
modification, alteration, or change or waiver of any provision of this Agreement
shall be effective unless in writing and signed by both parties wherein specific
reference is made to this Agreement.
18. NO OTHER INDUCEMENTS
This Agreement sets forth the entire understanding of the
parties in connection with the subject matter hereof. Any and all prior
negotiations are merged in this Agreement. Neither of the parties has made any
settlement, representation or warranty in connection herewith (except those
expressly set forth in this Agreement) which has been relied upon by the other
party, or which acted as an inducement for the other party to enter into this
Agreement.
19. PERSONS BOUND BY THE AGREEMENT
This Agreement shall be binding upon and inure to the benefit
of Employee and BSC and their respective successors.
20. ASSIGNMENT OF INTERESTS
Employee warrants that he has not assigned or transferred or
purported to assign or transfer any claim against Releasees.
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21. PREVAILING PARTY ENTITLED TO FEES
In the event that any action or proceeding is initiated to
enforce or interpret the provisions of this Agreement, or to recover for a
violation of the Agreement, the prevailing party in any such action or
proceeding shall be entitled to its costs (including reasonable attorneys'
fees).
22. REPRESENTATION
Employee represents that, prior to executing this Agreement,
he had the opportunity to review the provisions of this Agreement with counsel
of his choice.
The parties have read the foregoing Agreement
and know its contents, and know that its terms are contractual and legally
binding. The parties further agree that they enter this Agreement voluntarily
and that they have not been pressured or coerced in any way into signing this
Agreement.
IN WITNESS WHEREOF, the parties hereby agree.
by: /s/ Charles M. Mabrey December 29, 1998
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Charles M. Mabrey Date
BOSTON SCIENTIFIC CORPORATION
By: /s/ Robert G. MacLean January 4, 1999
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Robert G. MacLean Date
Senior Vice President
Human Resources
Attachments: 1. Employment Agreement
Dated May 19, 1987
2. Part-Time Responsibilities Specification
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ATTACHMENT 1
MEDI-TECH
EMPLOYMENT AGREEMENT
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In consideration of my employment by MEDI-TECH, Incorporated ("the Company"), I
agree to communicate to the Company all inventions, discoveries or improvements
(whether or not patentable) which I may make during the term of my employment.
If requested to do so by the Company, I agree to do whatever is necessary to
take out patents in any country and to assign all patents and applications
relating to them to the Company, before or after leaving its employment. It is
understood that the cost of making such assignments and procuring patents shall
be paid by the Company. I further agree that rights to all royalties resulting
from such patents will be the property of the Company.
If requested, but not otherwise, I agree to take out copyrights on work
resulting from specific Company assignments and to assign such copyrights to the
Company. I further agree that rights to all royalties resulting from such
copyrights will be the property of the Company. It is understood, however, that
copyrights resulting from professional activities of a general nature not
resulting from a specific Company assignment are my own property.
I recognize that I will have knowledge of business confidences of the Company,
including written material such as memoranda, sales records, product development
information, customer information, financial information, and laboratory
reports. I agree to hold confidential both during and after my employment all
such matters, over and above the ordinary skill of my profession, the disclosure
of which might prejudicially affect the Company or its clients. Upon termination
of employment I will not take written or printed material with me whether in the
form of printed reports, case memoranda, laboratory notebooks or any file
material whatsoever without the written permission of the Company.
I further agree that for a period of two years after the termination of my
employment with the Company, I will not, without the written consent of the
Company, work for or assist any business organization which competes with the
Company with respect to its products being sold or in development.
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As a condition of employment, I certify:
that to the best of knowledge, I have no commitments to any present or former
employer, or to any other parties, which could create a conflict of interest on
behalf of the Company its clients, and that I am free to disclose and make use
of non-confidential information except as noted below (if none, please state
so.)
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None
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that I have no commitments, or restrictions, in my service as a result of past
or present consulting agreements, directorships, ownerships or other position or
connection with any other organization, and will not enter into such commitments
without prior discussions with the Company, except as noted below (if none,
please state so.)
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None
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that I am not committed to publish any work of mine by any other organization,
or have my name used in connection with any publication or promotional material
which may appear subsequent to my employment, except as noted below (if none,
please state so.)
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None
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Please bring this form to the Human Relations Department to execute signature
and witness.
Name (printed) Charles M. Mabrey
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Signature /s/ Charles M. Mabrey
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Date 5/18/87
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Witness to signature
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(Human Relations Department)
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ATTACHMENT 2
Part-Time Responsibilities to be Performed
by Charles M. Mabrey for the Period January 1, 1999
through December 31, 2000 ("Termination Date")
Through the Termination Date, Employee shall perform such responsibilities as
may be reasonably requested by BSC, including without limitation:
1. Identify and assist to the extent requested in the orientation of
Employee's successor(s) at BSC (during both the First Twelve-(12) Month
Period and Second Twelve-(12) Month Period).
2. Assure a smooth transition of Employee's current job responsibilities,
including: (i) the transition of such job responsibilities to his
successor(s) or another one or more persons designated by his manager(s);
and (ii) the professional handling of matters for which he is currently
responsible until such matters are assigned to another one or more persons
designated by BSC (during both the First Twelve-(12) Month Period and
Second Twelve-(12) Month Period).
3. Evaluate and provide input with respect to the supply chain initiative
(McKinsey Project) currently being implemented at BSC (particularly during
the First Twelve-(12) Month Period).
4. Provide advice and assistance to facilitate the implementation and ongoing
progress of the strategic manufacturing capacity plan (particularly during
the First Twelve-(12) Month Period).
5. Provide advice and assistance to facilitate operational rationalization and
consolidation (particularly during the First Twelve-(12) Month Period).
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