Exhibit 10.6
COVIDIEN
SEVERANCE PLAN FOR 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
PURPOSE, INTENT 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
DEFINITIONS
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2
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Section 2.01
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“Alternative Position”
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2
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Section 2.02
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“Annual
Bonus”
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2
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Section 2.03
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“Base
Salary”
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2
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Section 2.04
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“Board”
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2
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Section 2.05
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“Cause”
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2
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Section 2.06
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“COBRA”
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2
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Section 2.07
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“Code”
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2
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Section 2.08
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“Committee”
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2
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Section 2.09
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“Company”
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3
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Section 2.10
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“Effective Date”
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3
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Section 2.11
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“Eligible
Employee”
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3
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Section 2.12
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“Employee”
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3
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Section 2.13
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“Employer”
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3
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Section 2.14
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“ERISA”
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3
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Section 2.15
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“Exchange
Act”
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3
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Section 2.16
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“Involuntary Termination”
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3
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Section 2.17
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“Key
Employee”
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3
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Section 2.18
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“Notice
Pay”
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3
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Section 2.19
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“Officer”
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3
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Section 2.20
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“Participant”
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4
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Section 2.21
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“Permanent Disability”
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4
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Section 2.22
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“Plan”
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4
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Section 2.23
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“Plan
Administrator”
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4
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Section 2.24
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“Postponement Period”
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4
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Section 2.25
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“Release”
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4
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-i-
TABLE OF CONTENTS
(continued)
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Page
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Section 2.26
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“Salary
Continuation Benefits”
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4
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Section 2.27
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“Separation from Service”
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4
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Section 2.28
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“Separation from Service
Date”
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4
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Section 2.29
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“Severance Benefits”
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4
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Section 2.30
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“Severance Period”
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4
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Section 2.31
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“Subsidiary”
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5
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Section 2.32
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“Voluntary Termination”
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5
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ARTICLE III
PARTICIPATION AND ELIGIBILITY FOR BENEFITS
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6
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Section 3.01
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Participation
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6
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Section 3.02
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Conditions
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6
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ARTICLE IV
DETERMINATION OF SEVERANCE BENEFITS
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8
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Section 4.01
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Amount of
Severance Benefits Upon Involuntary Termination
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8
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Section 4.02
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Voluntary
Termination; Termination for Death or Permanent
Disability
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10
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Section 4.03
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Termination for
Cause
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10
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Section 4.04
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Reduction of
Severance Benefits
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10
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ARTICLE V
METHOD AND DURATION OF SEVERANCE BENEFIT PAYMENTS
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11
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Section 5.01
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Method of
Payment
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11
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Section 5.02
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Other
Arrangements
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11
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Section 5.03
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Code Section
409A
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11
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Section 5.04
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Termination of
Eligibility for Benefits
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12
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ARTICLE VI
CONFIDENTIALITY, COVENANT NOT TO COMPETE AND NOT TO
SOLICIT
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13
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Section 6.01
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Confidential
Information
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13
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Section 6.02
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Non-Competition
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13
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Section 6.03
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Non-Solicitation
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13
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Section 6.04
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Non-Disparagement
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14
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Section 6.05
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Reasonableness
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14
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Section 6.06
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Equitable
Relief
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14
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Section 6.07
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Survival of
Provisions
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15
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ARTICLE VII THE
PLAN ADMINISTRATOR
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16
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-ii-
TABLE OF CONTENTS
(continued)
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Page
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Section 7.01
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Authority and
Duties
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16
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Section 7.02
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Compensation of
the Plan Administrator
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16
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Section 7.03
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Records,
Reporting and Disclosure
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16
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ARTICLE VIII
AMENDMENT, TERMINATION AND DURATION
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17
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Section 8.01
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Amendment,
Suspension and Termination
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17
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Section 8.02
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Duration
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17
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ARTICLE IX
DUTIES OF THE COMPANY AND THE COMMITTEE
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18
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Section 9.01
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Records
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18
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Section 9.02
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Payment
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18
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Section 9.03
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Discretion
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18
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ARTICLE X
CLAIMS PROCEDURES
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19
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Section 10.01
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Claim
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19
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Section 10.02
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Initial
Claim
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19
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Section 10.03
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Appeals of
Denied Administrative Claims
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19
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Section 10.04
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Appointment of
the Named Appeals Fiduciary
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20
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Section 10.05
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Arbitration;
Expenses
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20
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ARTICLE XI
MISCELLANEOUS
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22
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Section 11.01
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Nonalienation
of Benefits
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22
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Section 11.02
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Notices
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22
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Section 11.03
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Successors
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22
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Section 11.04
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Other
Payments
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22
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Section 11.05
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No
Mitigation
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22
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Section 11.06
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No Contract of
Employment
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22
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Section 11.07
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Severability of
Provisions
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22
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Section 11.08
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Heirs, Assigns,
and Personal Representatives
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23
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Section 11.09
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Headings and
Captions
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23
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Section 11.10
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Gender and
Number
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23
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Section 11.11
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Unfunded
Plan
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23
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Section 11.12
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Payments to
Incompetent Persons
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23
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Section 11.13
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Lost
Payees
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23
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Section 11.14
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Controlling
Law
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23
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-iii-
TABLE OF CONTENTS
(continued)
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Page
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Appendix
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SALARY
CONTINUATION AND BONUS PAYMENT SCHEDULE
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A-1
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-iv-
ARTICLE I
PURPOSE, INTENT 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 involuntarily. 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 requirements of 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 and shall supersede any prior plan, program or
policy under which the Company or any Subsidiary provided severance
benefits prior to the Effective Date of the Plan. 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
“ Alternative Position
” shall mean a position with the Company that:
(a) is not more than 50 miles each
way from the location of the Employee’s current position (for
positions that are essentially mobile, the mileage does not apply);
and
(b) provides the Employee with pay
and benefits (not including perquisites or long-term incentive
compensation) that are comparable in the aggregate to the
Employee’s current position.
The Plan Administrator has the
exclusive discretionary authority to determine whether a position
is an Alternative Position.
Section 2.02
“ Annual Bonus ”
shall mean 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 Participant’s Separation from Service
Date.
Section 2.03
“ Base Salary ”
shall mean the Participant’s annual base salary in effect as
of the Participant’s Separation from Service Date.
Section 2.04
“ Board ” shall
mean the Board of Directors of Covidien Ltd.
Section 2.05
“ Cause ” shall
mean 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 Plan Administrator, 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 2.06
“ COBRA ” shall
mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, and the regulations promulgated thereunder.
Section 2.07
“ Code ” shall
mean the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
Section 2.08
“ Committee ”
shall mean the Compensation and Human Resources Committee of the
Board or such other committee appointed by the Board to assist the
Company in making determinations required under the Plan in
accordance with its terms. The “Committee” may delegate
its authority under the Plan to an individual or another
committee.
-2-
Section 2.09
“ Company ”
shall mean Covidien Ltd. Unless it is otherwise clear from the
context, Company shall generally include participating
Subsidiaries.
Section 2.10
“ Effective Date
” shall mean January 1, 2009.
Section 2.11
“ Eligible Employee
” shall mean an Employee who is an Officer or is in career
band one or two and who is not covered under any other severance
plan or program sponsored by the Company or a Subsidiary. If there
is any question as to whether an Employee is an Eligible Employee,
the Senior Vice President, Human Resources of Covidien Ltd. shall
make the determination.
Section 2.12
“ Employee ”
shall mean an 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 2.13
“ Employer ”
shall mean the Company or any Subsidiary.
Section 2.14
“ ERISA ” shall
mean the Employee Retirement Income Security Act of 1974, as
amended, and the regulations promulgated thereunder.
Section 2.15
“ Exchange Act ”
shall mean the Securities Exchange Act of 1934, as amended, and the
regulations promulgated thereunder.
Section 2.16
“ Involuntary
Termination ” shall mean the date that a Participant
experiences a Company-initiated Separation from Service for any
reason other than Cause, Permanent Disability or death, as provided
under and subject to the conditions of Article III.
Section 2.17
“ Key Employee ”
shall mean 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 2.18
“ Notice Pay ”
shall mean the amounts that a Participant is eligible to receive
pursuant to Section 4.01(a).
Section 2.19
“ Officer ” shall
mean 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. For purposes of this definition, Officer shall also
mean any officer of any of the Company’s Subsidiaries who
performs policy making functions, within the context of Rule
16a-1(f).
-3-
Section 2.20
“ Participant ”
shall mean any Eligible Employee who meets the requirements of
Article III and thereby becomes eligible for Severance
Benefits.
Section 2.21
“ Permanent Disability
” shall mean 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 2.22
“ Plan ” means
the Covidien Severance Plan for U.S. Officers and Executives as set
forth herein, and as the same may from time to time be
amended.
Section 2.23
“ Plan Administrator
” shall mean 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
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 2.24
“ Postponement Period
” shall mean, 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 2.25
“ Release ” shall
mean the “Separation of Employment Agreement and General
Release,” as provided by the Company, or such other agreement
between the Company and Participant under which the Participant
releases potential claims against the Company in exchange for
Severance Benefits.
Section 2.26
“ Salary Continuation
Benefits ” shall mean the salary continuation payments
described in Section 4.01(b) and the bonus payments described
in Section 4.01(c)(ii).
Section 2.27
“ Separation from
Service ” shall mean “separation from
service” within the me