February 14, 2007 John Loughlin Orchid Beach Club #802A Sarasota, FL 34236 Dear John:
Exhibit
(10)-ss
February
14, ▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ #▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
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Dear
▇▇▇▇:
This
letter summarizes the terms and conditions of your retirement from Bausch &
Lomb Incorporated (“Bausch & Lomb” or “the Company”) and when counter-signed
by you, constitutes the agreement between you and the Company regarding your
retirement (“Agreement”).
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1.
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Your
active employment with Bausch & Lomb ceases effective February 28,
2007 (“Separation Date”). You will not earn or accrue any vacation time
for 2007.
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2.
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On
March 1, 2007 Bausch & Lomb will make a lump sum severance payment to
you which is equal to twelve months of your current base salary,
less
deductions required by (i) law, (ii) the amount which you will owe
the
Company upon completion of the 2005 Tax Equalization Calculation
pursuant
to the Global Services Plan (estimated at approximately $45,000 for
2005),
and (iii) your share of any other payments attributable to any continued
benefits participation for which you are
eligible.
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3.
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You
will not receive a bonus under the Annual Incentive Compensation
Plan
(“AICP”) for 2005. You will be eligible to receive a bonus in an amount
equal to 53.9% of your target under the AICP for 2006, based on
performance against defined Company and business unit objectives
and
subject to (i) final confirmation by the Compensation Committee of
the
Company’s performance at the level required to fund the bonus pool
pursuant to the AICP and (ii) a final determination by the Compensation
Committee of the amount of your bonus. Any earned bonus for 2006
will be
paid out pursuant to the AICP. You hereby waive any claims to a bonus
for
2007 under the AICP and agree to accept the arrangement set forth
in this
Agreement in lieu of any entitlement you may have under the AICP
for 2007.
Your participation in the AICP shall be governed at all times by
the terms
of the Bausch & Lomb Plan documents, except as expressly modified by
this Agreement.
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4.
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Upon
execution of this Letter Agreement and expiration of the period set
forth
in Section 17 without revocation of this Agreement by you, you will
receive an "LTI" award in the amount of $466,480 under the Long Term
Performance Unit Program for the full 2004-2005 performance cycle.
You
will not be eligible to vest or otherwise participate in any subsequent
awards under the Long Term Performance Unit Program. Your participation
in
the Long Term Performance Unit Program shall be governed at all times
by
the terms of the Bausch & Lomb Plan documents, except as expressly
modified by this Agreement.
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5.
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Through
the Separation Date, you will be eligible to vest in stock options
under
the Company’s 1990 Stock Incentive Plan and/or 2003 Long-Term Incentive
Plan, provided that all other conditions to vesting of such options,
as
set forth in the stock option agreement covering such options, are
satisfied. The Compensation Committee of the Board of Directors will
also
accelerate the vesting date for one third of the stock option granted
to
you January 31, 2005 (option for 6,333 remaining unvested shares)
to
February 28, 2007. All other terms of such stock option grant remain
the
same. Following the Separation Date, you will not be eligible for
any
other vesting in stock options or restricted stock. A listing of
your
stock options and any outstanding loans is attached. As a participant
in
the 1990 Stock Incentive Plan who is retiring from the Company, you
will
have three (3) months from the Separation Date to exercise vested
incentive stock options and five (5) years from the Separation Date
to
exercise non-qualified stock options unless such incentive stock
option or
non-qualified stock option grant expires pursuant to its terms at
an
earlier date. As a participant in the Bausch & Lomb 2003 Long-Term
Incentive Plan who is retiring from the Company, you have until the
earlier of three years from the Retirement Date or the expiration
of the
end of the stated term of the option to exercise non-qualified stock
options granted under the 2003 Plan. Your participation in these
Plans
shall be governed at all times by the terms of the Bausch & Lomb 1990
Stock Incentive Plan and Bausch & Lomb 2003 Long-Term Incentive Plan
documents as applicable.
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6.
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Officer
perquisites will continue as
follows:
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a. Financial
Counseling. Bausch & Lomb will reimburse you up to $10,000 for 2007 for
reasonable financial planning expenses pursuant to the Corporate Officer
Separation Plan. This reimbursement may include reasonable legal services but
only to the extent such legal services are directly related to the negotiation
and finalization of this Agreement. Tax preparation related to your expatriate
compensation and benefits will be provided pursuant to the Global Services
Plan
for repatriating employees.
b. Airline
Club Membership. Bausch & Lomb will continue to reimburse or pay existing
regular dues associated with your airline club membership through the Separation
Date.
c. Outplacement.
Bausch & Lomb will provide you with outplacement services as provided in the
Corporate Officer Separation Plan.
d. Relocation.
You will receive all of the benefits of Bausch & Lomb’s Global Service
Assignment Policy (Exhibit A). These benefits are in addition to the benefits
provided in this Agreement.
e. Automobile.
In lieu of an automobile lease, Bausch & Lomb shall provide to you on the
Separation Date a lump sum payment in the amount of $20,400 which the company
would have paid for a lease through the end of 2007, less the required
withholdings.
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7.
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You
may elect to continue your medical, dental and life insurance at
active
employee rates through the Separation Date. After the Separation
Date, you
will be eligible to participate in the retiree medical program and
the
retiree life insurance program, and you will be eligible for COBRA
coverage that allows you to continue your current dental insurance
at the
full premium rates for up to an additional 18 months. There is no
COBRA
eligibility for life insurance. Disability coverage ceases on the
Separation Date. There are no conversion rights for long-term disability.
Upon your request, HR will provide you with more
information.
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8.
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You
are fully vested in the Bausch & Lomb Steady Growth Plan (“Steady
Growth Plan”), Benefits Restoration Plan (“Restoration Plan”) and the
Supplemental Executive Retirement Plan III (“SERP”). Within three (3)
months of your Separation Date, you will receive details on payout
options
under the Steady Growth Plan, the Restoration Plan, and SERP from
our
Corporate Benefits Department. You will not vest in, or otherwise
receive
any benefits under, the Long-Term Equity Equivalent Accumulation
Plan.
Your participation in these Plans shall be governed at all times
by the
terms of the applicable Bausch & Lomb Plan
documents.
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9.
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Participation
in the Bausch & Lomb 401(k) Plan will end as of the Separation Date.
You may leave your money in the Bausch & Lomb 401(k) Plan or elect a
distribution. Contact Fidelity NetBenefits at ▇▇▇.▇▇▇▇.▇▇▇ or
1-800-835-5095 for account information or to make any future transactions.
Your participation in the 401(k) Plan shall be governed at all times
by
the terms of the Bausch & Lomb 401(k) Plan
document.
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10.
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Your
participation in the Deferred Compensation Plan shall be governed
at all
times by the terms of the Executive Deferred Compensation Plans and
the
Restricted Stock Deferred Compensation Plan. Deferred compensation
accounts that you’ve elected to receive upon retirement will commence
payment within 60 days of January 1, 2008. The investment mix can
be
changed at any time prior to payout by accessing the website at
▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇. You will continue to receive quarterly statements.
Please advise Corporate Compensation of any address
changes.
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11.
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In
consideration of the benefits to be provided to you in the Agreement
and
as part of your fiduciary obligations to Bausch & Lomb, you agree that
for a period of one (1) year from the Separation Date, you will not,
directly or indirectly, (a) compete with any business in which Bausch
& Lomb or any of its affiliates is currently engaged or actively
developing, (b) solicit or hire any employee of Bausch & Lomb or any
of its affiliates to work for or on behalf of you or any business
in which
you serve as an employee, an officer, a director, an owner, a partner
or a
five percent (5%) or more shareholder, or (c) solicit any person
who is a
customer of a business conducted by Bausch & Lomb or any of its
affiliates. For purposes of this Agreement, the phrase “compete” shall
include serving as an employee, an officer, a director, an owner,
a
partner or a five percent (5%) or more shareholder of any such business
or
otherwise engaging in or assisting another to engage in any such
business.
Without limiting the foregoing, Bausch & Lomb may consider, on an as
requested basis, modifications to your restrictions on competition
where
management of Bausch & Lomb believes the competitive impact on Bausch
& Lomb to be minimal or otherwise
manageable.
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12.
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As
a result of your employment with Bausch & Lomb and as a result of your
position as an officer of Bausch & Lomb, you are obviously privy to
sensitive financial and strategic information, as well as trade secrets
which are the confidential property of Bausch & Lomb, and Company
Information (as defined below). You affirm that, as a former officer
of
Bausch & Lomb, you will continue to have a fiduciary obligation to
maintain Company Information in confidence and not to disclose it
to
others. You will have returned or will, as of the Separation Date,
immediately return to Bausch & Lomb all Company Information that is
capable of being returned, including client lists, files, software,
records, computer access codes, and instruction manuals which you
have in
your possession, and you agree not to keep any copies of Company
Information. The term "Company Information" means: (i) confidential
information, including information received from third parties under
confidential conditions, and (ii) other technical, marketing, business
or
financial information, or information relating to personnel or former
personnel of Bausch & Lomb, the use or disclosure of which might
reasonably be construed to be contrary to the interest of Bausch
&
Lomb; provided, however, that the term "Company Information" shall
not
include any information that is or became generally known or available
to
the public other than as a direct result of a breach of this Section
by
you or any action by you prior to the Separation Date which would
have
been a breach of your obligations to Bausch & Lomb in effect at such
time.
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13.
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You
agree to make yourself reasonably available to Bausch & Lomb (i) for
consultation through the Separation Date relating to work matters
and (ii)
at all reasonable times to respond to requests by Bausch & Lomb for
information concerning matters involving facts or events relating
to
Bausch & Lomb or any of its affiliates that may be within your
knowledge, and to assist Bausch & Lomb and its affiliates as
reasonably requested with respect to pending and future litigations,
arbitrations, other dispute resolutions, internal investigations
or
reviews, or other similar matters. Bausch & Lomb will reimburse you
for your reasonable travel expenses and costs incurred as a result
of your
assistance under this Section. As you know, the bylaws of Bausch
&
Lomb provide for your indemnification, to the fullest extent authorized
or
permitted by law, in the event there are claims against you arising
out of
your actions while an officer of Bausch & Lomb. The bylaws also
provide for the advancement of expenses incurred in defending any
proceeding in advance of its final disposition. This Agreement is
not
intended to modify or limit those rights in any
manner.
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14.
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As
provided for in the Corporate Officer Separation Plan, by accepting
the
package set forth in this Agreement, and except as to the obligations
of
Bausch & Lomb set forth in this Agreement and under Bausch & Lomb
Benefit Plans, you, for yourself and your heirs, administrators,
representatives, and assigns (collectively, the "Releasors") hereby
release and discharge Bausch & Lomb, and its former and current
affiliates, agents, directors and employees and their successors
and
assigns (collectively, the "Releasees"), from any and all claims,
causes
of action, liability, damages and/or losses of whatever kind or nature,
in
law or equity, known or unknown, which the Releasors ever had, now
have,
or may have in the future against the Releasees from the beginning
of time
through the date of this Agreement, arising directly or indirectly
out of
your employment by Bausch & Lomb or as a result of your separation
from employment, including, but not limited to, any and all claims
arising
under any local, state or federal employment discrimination law,
including
but not limited to the Age Discrimination in Employment Act, the
Older
Workers' Benefits Protection Act, Title VII of the Civil Rights Act
of
1964, the Americans with Disabilities Act, and the New York Human
Rights
Law. In addition, as a condition to receiving certain severance benefits
detailed in this Agreement, you agree to execute the attached supplemental
release (“Supplemental Release”), within 21 days after the Separation
Date, thereby releasing all claims that may arise between the date
this
Agreement is counter-signed by you and the Separation
Date.
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15.
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You
understand that you should consult with your attorney prior to the
execution of this Agreement and have been given a reasonable opportunity
to do so. You acknowledge that you understand the contents of this
Agreement and that this Agreement is entered into freely and voluntarily
and that it is not predicated on or influenced by any representations
of
Bausch & Lomb or any of its
employees.
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16.
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You
acknowledge you have been afforded twenty-one (21) days to review
and
consider this Agreement; and that such period was a reasonable period
of
time for you to do so.
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17.
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You
understand that you may revoke this Agreement at any time within
seven (7)
days of the execution hereof, and that the Agreement will not become
effective or enforceable until the expiration of that
period.
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18.
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You
understand that nothing in this Agreement prevents you from filing
a
charge (including a challenge to the validity of this Agreement)
with the
Equal Employment Opportunity Commission (the “EEOC”) or participating in
any investigation or proceeding conducted by the EEOC. However, you
understand and agree that you are waiving any right to monetary or
other
individual relief as a result of any such EEOC proceedings or any
subsequent legal action brought by the EEOC or anyone else on your
behalf.
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19.
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Except
as provided for in this Agreement, the compensation and benefits
arrangements set forth in this Agreement supersede any other agreement
between you and Bausch & Lomb, and are in lieu of any rights or claims
that you may have with respect to severance or other benefits, or
any
other form of remuneration from Bausch & Lomb and its affiliates,
other than benefits under any tax-qualified employee pension benefit
plans
subject to the Employee Retirement income Security Act of 1974, as
amended.
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20.
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Except
as required by law or regulation, neither you nor Bausch & Lomb will
disclose or discuss the terms of this Agreement; provided, that you
may
disclose such terms to your financial and legal advisors and your
spouse
and Bausch & Lomb may disclose such terms to selected employees,
advisors and affiliates on a "need to know" basis, each of whom shall
be
instructed by you and Bausch & Lomb, as the case may be, to maintain
the terms of this Agreement in strict confidence in accordance with
the
terms hereof. Bausch & Lomb may also disclose the terms of this
Agreement as required by applicable law or regulations. You may also
disclose the content of your non-compete commitment to prospective
employers, as needed.
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21.
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By
this Agreement, you are resigning from all positions and offices
held by
you in Bausch & Lomb’s subsidiaries and affiliates except as expressly
provided in this Agreement. You agree that you will, when asked,
execute
such further instruments and documents as are necessary to effect
this
resignation as to all such Bausch & Lomb subsidiaries and
affiliates.
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22.
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You
represent and acknowledge that, in executing this Agreement, you
have not
relied upon any representation or statement made by Bausch & Lomb or
not set forth herein. This Agreement may not be amended, modified,
terminated, or waived in any part, except by a written instrument
signed
by the parties.
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23.
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All
payments made to you under this Agreement will be reduced by, or
you will
otherwise pay, all applicable income, employment and other taxes
required
to be withheld on such payments.
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24.
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The
invalidity or unenforceability of any provision will not affect the
validity or enforceability of any other provision of this Agreement.
The
terms of this Agreement are severable. If any paragraph, provision
or part
of this Agreement is found to be unenforceable by a tribunal of competent
jurisdiction, that paragraph, provision or part shall be treated
as if it
were deleted and the remaining provisions shall remain in full force
and
effect. The parties agree that in construing this provision, any
tribunal
of competent jurisdiction shall deem the unenforceable paragraph,
provision or part deleted to the minimum extent possible, thereby
saving
to the greatest extent possible all paragraphs, provisions and parts
or
this Agreement.
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25.
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Nothing
contained in this Agreement shall be construed in any way as an admission
by you or Bausch & Lomb of any act, practice or policy of
discrimination or breach of contract either in violation of applicable
law
or otherwise. Nothing contained in this Agreement shall be construed
as an
admission by you that you have acted improperly or failed to perform
your
duties.
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26.
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This
Agreement shall be governed by and construed in accordance with the
laws
of the State of New York, without regard to the principles of conflicts
of
law thereof, to the extent not superseded by applicable federal law.
The
parties hereto hereby agree that any dispute concerning formation,
meaning, applicability or interpretation of this agreement shall
be
submitted to the jurisdiction of the courts of the State of New York
(including federal courts in the State of New York), and venued in
Monroe
County, New York, and further agree that no other state shall have
jurisdiction over such matters.
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27.
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You
acknowledge and agree that Bausch & Lomb's remedy at law for any
breach of your obligations under Sections 11, 12 and 20 of this Agreement
would be inadequate and agree and consent that temporary and permanent
injunctive relief may be granted in any proceeding that may be brought
to
enforce any provision of this Section without the necessity of proof
of
actual damage. With respect to any provision of Sections 11, 12 and
20 of
this Agreement finally determined by a court of competent jurisdiction
to
be unenforceable, you and Bausch & Lomb hereby agree that such court
shall have jurisdiction to reform this Agreement or any provision
hereof
so that it is enforceable to the maximum extent permitted by law,
and you
and Bausch & Lomb agree to abide by such court’s
determination.
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If
the
terms and conditions are agreeable to you, please indicate your acceptance
of
the above in the space provided below and return the enclosed copy to
me.
Sincerely,
/s/
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
Agreed
to
this _19th___
day
of ___February___,
2007.
/s/
▇▇▇▇ ▇. Loughlin_____________________
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Supplemental
Release
I,
▇▇▇▇
▇▇▇▇▇▇▇▇, in consideration of the payments and benefits set forth in the
attached Agreement, do hereby agree as follows:
1. By
accepting the package set forth in the attached Agreement, and except as to
the
obligations of Bausch & Lomb set forth in the Agreement and under Bausch
& Lomb Benefit Plans, I, for myself and my heirs, administrators,
representatives, and assigns (collectively, the “Releasors”) hereby release and
discharge Bausch & Lomb, and its former and current affiliates, agents,
directors and employees and their successors and assigns (collectively, the
“Releasees”), from any and all claims, causes of action, liability, damages
and/or losses of whatever kind or nature, in law or equity, known or unknown,
which the Releasors ever had, now have, or may have in the future against the
Releasees from the beginning of time through the date of this Supplemental
Release, arising directly or indirectly out of my employment by Bausch &
Lomb or as a result of my separation from employment, including, but not limited
to, any and all claims arising under any local, state or federal employment
discrimination law, including but not limited to the Age Discrimination in
Employment Act, the Older Workers’ Benefits Protection Act, Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities Act, and the New
York
Human Rights Law.
2. I
understand that I should consult with an attorney prior to the execution of
this
Supplemental Release and I have been given a reasonable opportunity to do so.
I
acknowledge that I understand the contents of this Supplemental Release and
that
this Supplemental Release is entered into freely and voluntarily and that it
is
not predicated on or influenced by any representations of Bausch & Lomb or
any of its employees not contained in the Agreement.
3. I
acknowledge that I fully understand and agree that this Supplemental Release
may
be pleaded by Bausch & Lomb and the other Releasees as a complete defense to
any claim or entitlement which may be asserted by me, or on my behalf, in any
suit, claim, or proceeding against Bausch & Lomb, or the other Releasees,
concerning any matter occurring up to and including the date of the execution
of
this Supplemental Release.
4. I
acknowledge that I have been afforded twenty-one (21) days to review and
consider this Supplemental Release, and that such period was a reasonable period
of time for me to do so.
5. I
understand that I may revoke this Supplemental Release at any time within seven
(7) days of execution hereof, and that the Supplemental Release will not become
effective, or enforceable until the expiration of that period.
/s/
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▇. ▇▇▇▇▇▇▇▇
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