Exhibit 10.7
COVIDIEN CHANGE IN CONTROL
SEVERANCE PLAN
FOR CERTAIN U.S. OFFICERS AND
EXECUTIVES
As Amended and Restated Effective
January 1, 2009
TABLE OF CONTENTS
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Page
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ARTICLE I
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BACKGROUND,
PURPOSE AND TERM OF PLAN
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1
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Section 1.01
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Purpose and Intent of the Plan
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1
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Section 1.02
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Term
of the Plan
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1
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Section 1.03
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Adoption of the Plan
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1
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ARTICLE II
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DEFINITIONS
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2
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Section 2.01
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“Annual Bonus”
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2
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Section 2.02
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“Base Salary”
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2
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Section 2.03
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“Board”
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2
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Section 2.04
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“Cause”
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2
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Section 2.05
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“Change in Control”
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2
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Section 2.06
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“Change in Control
Benefits”
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3
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Section 2.07
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“Change in Control
Termination”
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3
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Section 2.08
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“COBRA”
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3
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Section 2.09
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“Code”
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3
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Section 2.10
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“Committee”
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3
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Section 2.11
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“Company”
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3
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Section 2.12
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“Effective Date”
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3
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Section 2.13
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“Eligible Employee”
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3
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Section 2.14
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“Employee”
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4
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Section 2.15
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“Employer”
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4
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Section 2.16
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“ERISA”
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4
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Section 2.17
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“Exchange Act”
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4
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Section 2.18
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“Executive Severance
Plan”
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4
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Section 2.19
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“Good Reason Resignation”
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4
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Section 2.20
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“Involuntary Termination”
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5
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Section 2.21
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“Key Employee”
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5
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Section 2.22
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“Notice Pay”
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5
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Section 2.23
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“Officer”
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5
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Section 2.24
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“Participant”
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5
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Section 2.25
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“Permanent Disability”
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5
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TABLE OF CONTENTS
(continued)
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Page
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Section 2.26
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“Plan”
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5
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Section 2.27
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“Plan Administrator”
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5
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Section 2.28
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“Postponement Period”
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6
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Section 2.29
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“Release”
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6
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Section 2.30
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“Separation from Service”
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6
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Section 2.31
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“Separation from Service
Date”
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6
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Section 2.32
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“Severance Benefits”
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6
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Section 2.33
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“Severance Period”
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6
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Section 2.34
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“Subsidiary”
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6
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Section 2.35
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“Successor”
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6
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Section 2.36
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“Voluntary Resignation”
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6
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ARTICLE III
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PARTICIPATION
AND ELIGIBILITY FOR BENEFITS
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7
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Section 3.01
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Participation
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7
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Section 3.02
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Conditions
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7
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ARTICLE IV
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DETERMINATION
OF SEVERANCE BENEFITS
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9
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Section 4.01
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Amount
of Severance Benefits Upon Involuntary Termination and Good Reason
Resignation
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9
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Section 4.02
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Voluntary Resignation; Termination for Death or
Permanent Disability
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11
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Section 4.03
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Termination for Cause
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11
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Section 4.04
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Reduction of Severance Benefits
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11
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ARTICLE V
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METHOD,
DURATION AND LIMITATION OF SEVERANCE BENEFIT PAYMENTS
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12
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Section 5.01
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Method
of Payment
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12
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Section 5.02
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Other
Arrangements
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12
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Section 5.03
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Code
Section 409A
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12
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Section 5.04
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Termination of Eligibility for
Benefits
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13
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Section 5.05
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Limitation on Benefits
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13
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ARTICLE VI
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CONFIDENTIALITY, COVENANT NOT TO COMPETE AND NOT
TO SOLICIT
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15
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Section 6.01
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Confidential Information
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15
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TABLE OF CONTENTS
(continued)
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Page
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Section 6.02
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Non-Competition
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15
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Section 6.03
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Non-Solicitation
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15
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Section 6.04
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Non-Disparagement
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16
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Section 6.05
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Reasonableness
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16
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Section 6.06
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Equitable Relief
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16
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Section 6.07
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Survival of Provisions
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17
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ARTICLE VII
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THE PLAN
ADMINISTRATOR
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18
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Section 7.01
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Authority and Duties
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18
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Section 7.02
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Compensation of the Plan
Administrator
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18
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Section 7.03
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Records, Reporting and Disclosure
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18
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ARTICLE VIII
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AMENDMENT,
TERMINATION AND DURATION
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19
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Section 8.01
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Amendment, Suspension and Termination
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19
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Section 8.02
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Duration
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19
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ARTICLE IX
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DUTIES OF THE
COMPANY AND THE COMMITTEE
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20
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Section 9.01
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Records
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20
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Section 9.02
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Payment
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20
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Section 9.03
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Discretion
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20
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ARTICLE X
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CLAIMS
PROCEDURES
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21
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Section 10.01
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Claim
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21
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Section 10.02
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Initial Claim
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21
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Section 10.03
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Appeals of Denied Administrative
Claims
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21
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Section 10.04
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Appointment of the Named Appeals
Fiduciary
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22
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Section 10.05
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Arbitration; Expenses
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22
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ARTICLE XI
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MISCELLANEOUS
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24
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Section 11.01
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Nonalienation of Benefits
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24
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Section 11.02
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Notices
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24
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Section 11.03
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Successors
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24
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Section 11.04
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Other
Payments
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24
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Section 11.05
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No
Mitigation
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24
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Section 11.06
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No
Contract of Employment
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24
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TABLE OF CONTENTS
(continued)
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Page
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Section 11.07
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Severability of Provisions
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24
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Section 11.08
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Heirs,
Assigns, and Personal Representatives
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25
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Section 11.09
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Headings and Captions
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25
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Section 11.10
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Gender
and Number
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25
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Section 11.11
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Unfunded Plan
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25
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Section 11.12
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Payments to Incompetent Persons
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25
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Section 11.13
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Lost
Payees
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25
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Section 11.14
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Controlling Law
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25
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APPENDIX
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Salary
Continuation Schedule
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A-1
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ARTICLE I
BACKGROUND, PURPOSE AND TERM
OF PLAN
Section 1.01 Purpose and
Intent of the Plan .
The purpose of the Plan is to provide Eligible Employees with
certain compensation and benefits in the event that such
Employee’s employment with the Company or a Subsidiary is
terminated due to a Change in Control Termination. The Plan is not
intended to be an “employee pension benefit plan” or
“pension plan” within the meaning of Section 3(2)
of ERISA. Rather, the Plan is intended to be a “welfare
benefit plan” within the meaning of Section 3(1) of
ERISA and to meet the descriptive requirements of a plan
constituting a “severance pay plan” within the meaning
of regulations published by the Secretary of Labor at Title 29,
Code of Federal Regulations , Section 2510.3-2(b).
Accordingly, no employee shall have a vested right to benefits paid
by the Plan. The terms of the Plan are intended to, and shall be
interpreted so as to, comply in all respects with the provisions of
Code Section 409A and the regulations and rulings promulgated
thereunder and, if necessary, any provision shall be held null and
void to the extent such provision (or any part thereof) fails to
comply with Code Section 409A or the regulations or rulings
promulgated thereunder.
Section 1.02 Term of the
Plan . The Plan, as
amended and restated, shall generally be effective as of the
Effective Date. The Plan is intended to supersede, and not to
duplicate, the provisions of the Covidien Severance Plan for U.S.
Officers and Executives (“Executive Severance Plan”) in
any case in which an Eligible Employee would otherwise be entitled
to severance or related benefits under both this Plan and the
Executive Severance Plan arising out of the Eligible
Employee’s Change in Control Termination. Moreover, this Plan
is intended to supersede any other plan, program, arrangement or
agreement providing an Eligible Employee with severance or related
benefits in the case of an Eligible Employee’s Change in
Control Termination. The Plan shall continue until terminated
pursuant to Article VIII of the Plan.
Section 1.03 Adoption of
the Plan . The Plan
was adopted by the Board of Directors of Covidien Ltd. on
June 30, 2007. The Board of Directors of Covidien Ltd., by
action of its Compensation and Human Resources Committee on
November 20, 2008, amended and restated the Plan and provided
for the transfer of sponsorship of the Plan to Tyco Healthcare
Group LP, and Tyco Healthcare Group LP agreed to accept such
transfer of sponsorship.
ARTICLE II
DEFINITIONS
Section 2.01
“ Annual Bonus ”
means the average of the actual bonuses paid to the respective
Participant pursuant to The Covidien Annual Incentive Plan that are
attributable to the three Company fiscal years that immediately
precede the fiscal year in which the Participant’s Separation
from Service Date occurs.
Section 2.02
“ Base Salary ”
means the Participant’s annual base salary in effect as of
the Participant’s Separation from Service Date.
Section 2.03
“ Board ” means
the Board of Directors of the Covidien Ltd.
Section 2.04
“ Cause ” means
an Employee’s (i) substantial failure or refusal to
perform duties and responsibilities of his or her job as required
by the Company, (ii) violation of any fiduciary duty owed to
the Company, (iii) conviction of a felony or misdemeanor,
(iv) dishonesty, (v) theft, (vi) violation of
Company rules or policy, or (vii) other egregious conduct,
that has or could have a serious and detrimental impact on the
Company and its employees. The Committee, in its sole and absolute
discretion, shall determine Cause. Examples of “Cause”
may include, but are not limited to, excessive absenteeism,
misconduct, insubordination, violation of Company policy,
dishonesty, and deliberate unsatisfactory performance (e.g.,
Employee refuses to improve deficient performance).
Section 2.05
“ Change in Control
” means the first to occur of any of the following
events:
(i) any “person”
(as defined in Section 13(d) and 14(d) of the Exchange Act,
excluding for this purpose, (i) the Company or any Subsidiary
or (ii) any employee benefit plan of the Company or any
Subsidiary (or any person or entity organized, appointed or
established by the Company for or pursuant to the terms of any such
plan that acquires beneficial ownership of voting securities of the
Company), is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act) directly or
indirectly of securities of the Company representing more than 30
percent of the combined voting power of the Company’s then
outstanding securities; provided, however, that no Change in
Control will be deemed to have occurred as a result of a change in
ownership percentage resulting solely from an acquisition of
securities by the Company;
(ii) persons who, as of the
Effective Date, constitute the Board (the “Incumbent
Directors”) cease for any reason (including without
limitation, as a result of a tender offer, proxy contest, merger or
similar transaction) to constitute at least a majority thereof,
provided that any person becoming a Director of the Company
subsequent to the Effective Date shall be considered an Incumbent
Director if such person’s election or nomination for election
was approved by a vote of at least 50 percent of the Incumbent
Directors; but provided further, that any such person whose initial
assumption of office is in connection with an actual or threatened
proxy contest relating to the election of members of the Board or
other actual or threatened solicitation of proxies or consents by
or on behalf of a “person” (as defined in
Section
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13(d) and 14(d) of the Exchange Act) other than
the Board, including by reason of agreement intended to avoid or
settle any such actual or threatened contest or solicitation, shall
not be considered an Incumbent Director
(iii) consummation of a
reorganization, merger or consolidation or sale or other
disposition of at least 80 percent of the assets of the Company (a
“Business Combination”), in each case, unless,
following such Business Combination, all or substantially all of
the individuals and entities who were the beneficial owners of
outstanding voting securities of the Company immediately prior to
such Business Combination beneficially own directly or indirectly
more than 50 percent of the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors of the company resulting from such Business
Combination (including, without limitation, a company which, as a
result of such transaction, owns the Company or all or
substantially all of the Company’s assets either directly or
through one or more Subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business
Combination, of the outstanding voting securities of the Company;
or
(iv) approval by the
stockholders of the Company of a complete liquidation or
dissolution of the Company.
Section 2.06
“ Change in Control
Benefits ” means the payments described in
Section 4.01(b) and Section 4.01(c)(ii).
Section 2.07
“ Change in Control
Termination ” means a Participant’s Involuntary
Termination or Good Reason Resignation that occurs during the
period beginning 60 days prior to the date of a Change in Control
and ending two years after the date of such Change in
Control.
Section 2.08
“ COBRA ” means
the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, and the regulations promulgated thereunder.
Section 2.09
“ Code ” means
the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
Section 2.10
“ Committee ”
means the Compensation and Human Resources Committee of the Board
or any successor committee or other committee to which the
Compensation and Human Resources Committee delegates its authority
under this Plan. The Committee may delegate its authority under the
Plan to an individual or another committee.
Section 2.11
“ Company ” means
Covidien Ltd., a Bermuda company, or any successor thereto. Unless
it is otherwise clear from the context, Company shall generally
include participating Subsidiaries.
Section 2.12
“ Effective Date
” means January 1, 2009.
Section 2.13
“ Eligible Employee
” means an Employee who is an Officer, or in career band one,
and who is not covered under any other severance plan or program
sponsored by the Company or a Subsidiary (other than the Executive
Severance Plan). If there is any question as to whether an Employee
is an Eligible Employee under the Plan, the Senior Vice President
– Human Resources of Covidien Ltd. shall make the
determination.
-3-
Section 2.14
“ Employee ”
means any individual who is a common law employee on the payroll of
any United States Subsidiary of Covidien Ltd., and shall not
include any person providing services to the Company or any
Subsidiary through a temporary service or on a leased basis or who
is hired by the Company or any Subsidiary as an independent
contractor, consultant, or otherwise as a person who is not an
employee for purposes of withholding United States federal income
or employment taxes, as evidenced by payroll records or a written
agreement with the individual, regardless of any contrary
governmental agency determination or judicial holding relating to
such status or tax withholding. Notwithstanding the above, in the
event that Section 409A applies to any payments made
hereunder, subsection (iv) of the definition of
“Subsidiary” shall apply.
Section 2.15
“ Employer ”
means the Company or any Subsidiary.
Section 2.16
“ ERISA ” means
the Employee Retirement Income Security Act of 1974, as amended,
and the regulations promulgated thereunder.
Section 2.17
“ Exchange Act ”
means the United States Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
Section 2.18
“ Executive Severance
Plan ” means the Covidien Severance Plan for U.S.
Officers and Executives, which plan is superseded by this Plan in
the event of any Participant’s Change in Control
Termination.
Section 2.19
“ Good Reason
Resignation ” means any retirement or termination of
employment by a Participant that is not initiated by the Employer
and that is caused by any one or more of the following events which
occurs during the period beginning 60 days prior to the date of a
Change in Control and ending two years after the date of such
Change in Control:
(1) Without the
Participant’s written consent, assignment to the Participant
of any duties inconsistent in any material respect with the
Participant’s authority, duties or responsibilities as in
effect immediately prior to the Change in Control;
(2) Without the Participant’s
written consent, a material diminution in the authority, duties or
responsibilities of the supervisor to whom the Participant is
required to report as in effect immediately prior to the Change in
Control;
(3) Without the
Participant’s written consent, a material change in the
geographic location at which the Participant must perform services
to a location which is more than 50 miles from the
Participant’s principal place of business immediately
preceding the Change in Control;
(4) Without the Participant’s
written consent, a material reduction in the Participant’s
compensation and benefits, taken as a whole, as in effect
immediately prior to the Change in Control;
(5) The Company’s failure
to obtain a satisfactory agreement from any Successor to assume and
agree to perform the Company’s obligations to the Participant
under this Plan, as contemplated in Section 11.03 herein;
or
-4-
(6) Without the Participant’s
written consent, a material diminution in the budget over which the
Participant retains authority;
Notwithstanding the foregoing, the
Participant shall be considered to have a Good Reason Resignation
only if (x) the Participant provides written notice to the
Employer specifying in reasonable detail the event upon which the
Participant is basing such Good Reason Resignation within ninety
(90) days after the occurrence of such event, (y) the
Employer fails to cure such event within thirty (30) days
after its receipt of such notice, and (z) the Participant
terminates employment within sixty (60) days after the
expiration of such cure period.
Section 2.20
“ Involuntary
Termination ” means the date that a Participant
experiences a Company-initiated Separation from Service from the
Employer for any reason other than Cause, Permanent Disability or
death, as provided under and subject to the conditions of Article
III.
Section 2.21
“ Key Employee ”
means an Eligible Employee who is a “specified
employee” under Code Section 409A, as determined by the
Committee or its delegate. The determination of Key Employees,
including the number and identity of persons considered specified
employees and the identification date, shall be made by the
Committee or its delegate in accordance with the provisions of Code
Section 409A and the regulations promulgated
thereunder.
Section 2.22
“ Notice Pay ”
means the amounts that a Participant is eligible to receive
pursuant to Article IV of the Plan.
Section 2.23
“ Officer ” means
any individual who is an officer, as such term is defined pursuant
to Rule 16a-1(f) as promulgated under the Exchange Act, of the
Company.
Section 2.24
“ Participant ”
means any Eligible Employee who meets the requirements of Article
III and thereby becomes eligible for Severance Benefits.
Section 2.25
“ Permanent Disability
” means that an Employee has a permanent and total incapacity
from engaging in any employment for the Employer for physical or
mental reasons. A “Permanent Disability” shall be
deemed to exist if the Employee meets the requirements for
disability benefits under the Employer’s long-term disability
plan or under the requirements for disability benefits under the
Social Security law then in effect, or if the Employee is
designated with an inactive employment status at the end of a
disability or medical leave.
Section 2.26
“ Plan ” means
the Covidien Change in Control Severance Plan for Certain U.S.
Officers and Executives as set forth herein, and as the same may
from time to time be amended.
Section 2.27
“ Plan Administrator
” means the individual(s) appointed by the Committee to
administer the terms of the Plan as set forth herein and if no
individual is appointed by the Committee to serve as the Plan
Administrator for the Plan, the Plan Administrator shall be the
Senior Vice President – Human Resources of Covidien Ltd.
Notwithstanding the preceding sentence, in the event the Plan
Administrator is entitled to Severance Benefits under the Plan,
the
-5-
Committee or its delegate shall act as the Plan
Administrator for purposes of administering the terms of the Plan
with respect to the Plan Administrator. The Plan Administrator may
delegate all or any portion of its authority under the Plan to any
other person(s).
Section 2.28
“ Postponement Period
” means, for a Key Employee, the period of six
(6) months after such Key Employee’s Separation from
Service Date (or such other period as may be required by Code
Section 409A).
Section 2.29
“ Release ” means
the “Separation of Employment Agreement and General
Release,” as provided by the Company or such other agreement
between the