Exhibit 10.17
EXECUTIVE CHANGE IN CONTROL AGREEMENT
This Executive Severance Agreement made as of the 21st day of June, 2005,
by and between Teleflex Incorporated (the "Company") and Xxxxxxx Xxxxxxxxx
("Employee").
WHEREAS, Employee is an executive of the Company; and
WHEREAS, the Board of Directors of the Company believes that appropriate
steps should be taken to reinforce and encourage the continued attention and
dedication of Employee to the Company without distraction, notwithstanding that
the Company could be subject to a Change of Control, and that such possibility,
and the uncertainty and questions which it may raise among management, may
result in the departure or distraction of key management personnel to the
detriment of the Company; and
WHEREAS, in consideration for Employee agreeing to continue in employment
with the Company and agreeing to keep Company information confidential, the
Company agrees that Employee shall receive the compensation set forth in this
Agreement in the event Employee's employment with the Company is terminated
without Cause or Employee terminates employment for Good Reason, upon or after a
Change of Control;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter set forth and intending to be legally bound hereby,
the parties hereto agree as follows:
1. Definitions.
"Base Salary" shall mean the highest annualized base rate of salary being
paid to Employee in all capacities with the Company, together with any and all
salary reduction authorized amounts under any of the Company's benefit plans or
programs, at the time of the Change of Control or any time thereafter.
"Benefit Period" shall mean the period beginning on Employee's Termination
Date and ending on the first to occur of (a) the second anniversary of the
Commencement Date or (b) the first date on which Employee is employed by another
employer and is eligible to participate in a health plan of Employee's new
employer.
"Board" shall mean the board of directors of the Company.
"Bonus Plan" shall mean a plan of the Company providing for the payment of
a cash bonus to Employee, including the Company's Profit Participation Plan and
the Company's Long Term Incentive Plan.
"Cause" shall mean (a) misappropriation of funds, (b) conviction of a
crime involving moral turpitude, or (c) gross negligence in the performance of
duties, which gross negligence has had a material adverse effect on the
business, operations, assets, properties or financial condition of the Company
and its subsidiaries taken as a whole.
"Commencement Date" shall mean the first day of the seventh month
beginning after Employee's Termination Date, unless earlier payment of
compensation or benefits under this Agreement is permissible under Section 409A
of the Code, in which case Commencement Date shall mean the earliest such
permissible date.
"Change of Control" shall mean one of the following shall have taken place
after the date of this Agreement:
(a) any "person" (as such term is used in Sections 13(d) or 14(d) of the
Exchange Act) (other than the Company, any majority controlled subsidiary of the
Company, or the fiduciaries of any Company benefit plans) becomes the beneficial
owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of 20% or more of the total voting power of the voting securities of
the Company then outstanding and entitled to vote generally in the election of
directors of the Company; provided, however, that no Change of Control shall
occur upon the acquisition of securities directly from the Company;
(b) individuals who, as of the beginning of any 24 month period,
constitute the Board (as of the date hereof the "Incumbent Board") cease for any
reason during such 24 month period to constitute at least a majority of the
Board, provided that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company's shareholders,
was approved by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual were a member
of the Incumbent Board, but excluding, for this purpose, any such individual
whose initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of the Company;
(c) consummation of (i) a merger, consolidation or reorganization of the
Company, in each case, with respect to which all or substantially all of the
individuals and entities who were the respective beneficial owners of the voting
securities of the Company immediately prior to such merger, consolidation or
reorganization do not, following such merger, consolidation or reorganization,
beneficially own, directly or indirectly, at least 65% of the combined voting
power of the then outstanding voting securities entitled to vote generally in
the election of directors of the entity or entities resulting from such merger,
consolidation or reorganization, (ii) a complete liquidation or dissolution of
the Company or (iii) a sale or other disposition of all or substantially all of
the assets of the Company, unless at least 65% of the combined voting power of
the then outstanding voting securities entitled to vote generally in the
election of directors of the entity or entities that acquire such assets are
beneficially owned by individuals or entities
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who or that were beneficial owners of the voting securities of the Company
immediately before such sale or other disposition; or
(d) consummation of any other transaction determined by resolution of the
Board to constitute a Change of Control.
"Code" means the Internal Revenue Code of 1986, as amended.
"Component Target Amount" shall have the meaning specified therefor in the
definition of "Target Bonus" in this Section 1.
"Disability" shall mean Employee's continuous illness, injury or
incapacity for a period of six consecutive months.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Good Reason" means a Termination of Employment initiated by Employee by
Notice of Termination, in accordance with Section 2 hereof, upon one or more of
the following occurrences; provided that as soon as practicable after Employee
becomes aware of such occurrence and before such Notice of Termination is given,
Employee shall have given notice of Good Reason to the Company and the Company
shall not have fully corrected the situation within 10 days after such notice of
Good Reason:
(a) any failure of the Company to comply with and satisfy any of the
material terms of this Agreement;
(b) any significant reduction by the Company of the title, duties, job
responsibilities, reporting relationship or position of Employee;
(c) any reduction in Employee's Base Salary; or
(d) the moving of the principal office of the Company to which Employee is
assigned to a location more than 25 miles from its location on the date of the
Change of Control.
"Performance Period" applicable to any Target Amount under a Bonus Plan
shall mean the period of time in which the performance goals applicable to the
determination of cash bonus awards pursuant to such Bonus Plan are measured.
"Target Amount" in respect of a bonus payable to Employee pursuant to any
Bonus Plan shall mean the amount specified in the Company's records pertaining
to such Bonus Plan as the "target amount" of cash bonus which would be payable
to Employee if specified conditions were fulfilled.
"Target Bonus" shall mean the sum of the Target Amounts (each a "Component
Target Amount") which would be payable in the year immediately
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following the Termination Year pursuant to all Bonus Plans if all of the
conditions for the payment of each Component Target Amount were fulfilled,
without regard to whether such conditions are actually fulfilled; provided that,
if a Target Amount has not been determined for any such Bonus Plan on or before
the Termination Date, the Target Amount for such Bonus Plan which would have
been payable in the Termination Year shall be substituted for such undetermined
Target Amount in the foregoing calculation of the "Target Bonus."
"Termination Date" shall mean the date of receipt of the Notice of
Termination described in Section 2 hereof or any later date specified therein as
the effective date of Employee's Termination of Employment, as the case may be.
"Termination of Employment" shall mean the termination of Employee's
active employment relationship with the Company.
"Termination following a Change of Control" shall mean a Termination of
Employment upon or within two years after a Change of Control either:
(a) initiated by the Company for any reason other than Disability or
Cause; or
(b) initiated by Employee for Good Reason.
"Termination Year" shall mean the year in which Employee's Termination
Date occurs.
2. Notice of Termination. Any Termination of Employment shall be
communicated by a Notice of Termination to the other party hereto given in
accordance with Section 14 hereof. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (a) indicates the specific reasons for
the termination, (b) briefly summarizes the facts and circumstances deemed to
provide a basis for termination of Employee's employment, and (c) if the
Termination Date is other than the date of receipt of such notice, specifies the
Termination Date (which date shall not be more than 15 days after the giving of
such notice).
3. Compensation upon Termination following a Change of Control. Subject to
the provisions of subsection (d) below and Sections 5 and 6 hereof, in the event
of Employee's Termination following a Change of Control, Employee shall be
entitled to receive the following payments and benefits from the Company:
(a) Within 15 days after the Termination Date, Employee shall receive a
lump sum cash payment equal to Employee's unpaid base salary earned through the
Termination Date.
(b) If a bonus awarded to Employee pursuant to any Bonus Plan for payment
in the Termination Year shall not have been paid to Employee, Employee shall
receive the amount of such award within 15 days after the Termination Date. If
no such bonus shall have been awarded to Employee under any Bonus Plan, on the
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Commencement Date Employee shall receive a lump sum cash payment in the amount
of the sum of the Target Amounts under each such Bonus Plan referred to in the
immediately preceding sentence which would have been payable to Employee in the
Termination Year.
(c) On the Commencement Date, Employee shall receive a lump sum cash
payment equal to the sum of (i) a pro-rated amount of the Target Bonus, (ii) the
amount (if any) paid by Employee for health care continuation coverage (COBRA)
for the period from the Termination Date to the date of such lump sum payment
and (iii) the actuarial present value, determined on the basis of the applicable
actuarial assumptions under the Teleflex Incorporated Retirement Income Plan
(the "TRIP") as of the Commencement Date, of the additional accruals with which
Employee would have been credited under each of the TRIP and the Teleflex
Incorporated Supplemental Executive Retirement Plan in which Employee
participates as of the Termination Date, if Employee were credited with two
additional Years of Benefit Service (as defined in the TRIP), received Base
Salary and Target Bonus throughout such additional two Years of Benefit Service,
but made no contributions to a 401(k) or cafeteria plan. The pro-rated Target
Bonus shall be computed by multiplying the Target Bonus by a fraction (i) the
numerator of which is the number of days in each year of the Performance Period
applicable to such Component Target Amount reduced by the number of days in the
Termination Year following the Termination Date and (ii) the denominator of
which is the number of days in the Performance Period.
(d) Beginning with the Commencement Date, Employee shall receive the
following:
(i) Employee shall receive an amount equal to two times Employee's Base
Salary. This amount shall be paid in 24 equal monthly installments over
the 24-month period following the Commencement Date.
(ii) Employee shall receive an amount equal to the Target Bonus on each of
the six-month and eighteen-month anniversaries of the Commencement Date.
(iii) The Company shall continue to provide health and dental benefits
under the Company's then current health plan for Employee and Employee's
spouse and dependents during the balance of the Benefit Period on the same
basis as if Employee had continued to be employed during that period, or
the Company may pay Employee cash in lieu of such coverage in an amount
equal to Employee's after-tax cost of continuing such coverage, where such
coverage may not be continued (or where such continuation would result in
adverse tax consequences to Employee). The COBRA health care continuation
coverage period under Section 4980B of the Code shall run concurrently
with this period.
(iv) During the Benefit Period, the Company shall reimburse Employee for
the cost of outplacement assistance services, up to a maximum of
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$20,000, which shall be provided by an outplacement agency selected by
Employee. The Company shall reimburse Employee within 15 days following
the date on which the Company receives proof of payment of such expense.
(v) If Employee was provided with the use of an automobile or a cash
allowance therefor as of the Termination Date, such use of an automobile
or cash allowance, as the case may be, shall be provided to Employee
during the balance of the Benefit Period.
(e) All Company stock options and restricted stock held by Employee as of
Employee's Termination Date that have not previously become vested and
exercisable shall immediately become fully vested and exercisable as of the date
immediately preceding the Termination Date, and any stock option or restricted
stock awards under which such stock options or restricted stock are granted are
hereby amended, effective the later of the date of this Agreement or the date of
such award, to so provide.
(f) As a condition to receiving the payments and benefits under this
Agreement, Employee must execute, and not revoke, a written waiver and release
of claims against the Company, substantially in the form attached hereto as
Exhibit A (but subject to any necessary adjustment reasonably determined by the
Company to be necessary to comply with applicable law and regulation in effect
as of Employee's Termination Date) (the "Release"). If Employee fails to execute
or revokes the Release, no payments or benefits shall be provided under this
Agreement.
4. Increase in Payments Upon Termination Following a Change of Control.
(a) Anything in this Agreement to the contrary notwithstanding, if a
Change of Control occurs and it is determined that any payment or distribution
by the Company to or for the benefit of Employee, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (a "Payment"), would constitute an "excess parachute payment" within
the meaning of Section 280G of the Code, the Company shall pay to Employee an
additional amount (the "Gross-Up Payment") such that the net amount retained by
Employee after deduction of any excise tax imposed under Section 4999 of the
Code, and any federal, state and local income tax, employment tax and excise tax
imposed upon the Gross-Up Payment, shall be equal to the Payment. For purposes
of determining the amount of the Gross-Up Payment, unless Employee specifies
that other rates apply, Employee shall be deemed to pay federal income tax and
employment taxes at the highest marginal rate of federal income and employment
taxation in the calendar year in which the Gross-Up Payment is to be made, and
state and local income taxes at the highest marginal rate of taxation in the
state and locality of Employee's residence on the Termination Date, net of the
maximum reduction in federal income taxes that may be obtained from the
deduction of such state and local taxes.
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(b) All determinations to be made under this Section 4 shall be made by
the Company's independent public accountants immediately prior to the Change of
Control or by another independent public accounting firm mutually selected by
the Company and Employee before the date of the Change of Control (the
"Accounting Firm"), which firm shall provide its determinations and any
supporting calculations both to the Company and Employee within 20 days after
Employee's Termination Date. Any such determination by the Accounting Firm shall
be binding upon the Company and Employee. The Company shall pay the Gross-Up
Payment to Employee on the Commencement Date or, if later, within ten days after
the Accounting Firm's determination.
(c) All of the fees and expenses of the Accounting Firm in performing the
determinations referred to in this Section 4 shall be borne solely by the
Company. The Company agrees to indemnify and hold harmless the Accounting Firm
from any and all claims, damages and expenses resulting from or relating to its
determinations pursuant to this Section 4, except for claims, damages or
expenses resulting from the gross negligence or willful misconduct of the
Accounting Firm.
5. Confidential Information. Employee recognizes and acknowledges that, by
reason of Employee's employment by and service to the Company, Employee has had
and will continue to have access to confidential information of the Company and
its affiliates, including, without limitation, information and knowledge
pertaining to products and services offered, innovations, designs, ideas, plans,
trade secrets, proprietary information, distribution and sales methods and
systems, sales and profit figures, customer and client lists, and relationships
between the Company and its affiliates and other distributors, customers,
clients, suppliers and others who have business dealings with the Company and
its affiliates ("Confidential Information"). Employee acknowledges that such
Confidential Information is a valuable and unique asset of the Company, and
Employee covenants that Employee will not, either during or after Employee's
employment by the Company, disclose any such Confidential Information to any
person for any reason whatsoever without the prior written authorization of the
Company, unless such information is in the public domain through no fault of
Employee or except as may be required by law or in a judicial or administrative
proceeding. Notwithstanding anything to the contrary herein, each of the parties
hereto (and each employee, representative, or other agent of such parties) may
disclose to any person, without limitation of any kind, the federal income tax
treatment and federal income tax structure of the transactions contemplated
hereby and all materials (including opinions or other tax analyses) that are
provided to such party relating to such tax treatment and tax structure.
6. Equitable Relief.
(a) Employee acknowledges that the restrictions contained in Section 5
hereof are reasonable and necessary to protect the legitimate interests of the
Company and its affiliates, that the Company would not have entered into this
Agreement in the absence of such restrictions, and that any violation of any
provision of that Section will result in irreparable injury to the Company.
Employee represents and acknowledges
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that (i) Employee has been advised by the Company to consult Employee's own
legal counsel in respect of this Agreement, and (ii) Employee has had full
opportunity, prior to execution of this Agreement, to review thoroughly this
Agreement with Employee's counsel.
(b) Employee agrees that the Company shall be entitled to preliminary and
permanent injunctive relief, without the necessity of proving actual damages, as
well as an equitable accounting of all earnings, profits and other benefits
arising from any violation of Section 5 hereof, which rights shall be cumulative
and in addition to any other rights or remedies to which the Company may be
entitled. Without limiting the foregoing, Employee also agrees that payment of
the compensation and benefits payable under Section 3 of this Agreement may be
automatically ceased in the event of a material breach of the covenants of
Section 5, provided the Company gives Employee written notice of such breach,
detailing the activity of Employee that constitutes a material breach, and
Employee fails to cease such activity within 15 days after Employee's receipt of
such written notice. In the event that any of the provisions of Section 5 hereof
should ever be adjudicated to exceed the time, geographic, service, or other
limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic, service, or other limitations permitted by applicable law.
(c) Employee irrevocably and unconditionally (i) agrees that any suit,
action or other legal proceeding arising out of Section 5 hereof, including
without limitation, any action commenced by the Company for preliminary and
permanent injunctive relief or other equitable relief, may be brought in a
United States District Court in Pennsylvania, or if such court does not have
jurisdiction or will not accept jurisdiction, in any court of general
jurisdiction in or around Philadelphia, Pennsylvania, (ii) consents to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding, and (iii) waives any objection which Employee may have to the laying
of venue of any such suit, action or proceeding in any such court. Employee also
irrevocably and unconditionally consents to the service of any process,
pleadings, notices or other papers in a manner permitted by the notice
provisions of Section 14 hereof.
7. Other Payments and Indemnification. The payments due under Section 3
hereof shall be in addition to and not in lieu of any payments or benefits due
to Employee under any other plan, policy or program of the Company except as
provided under Section 16(a) and except that no cash payments shall be paid to
Employee under any severance plan of the Company that are due and payable solely
as a result of a Change of Control. In addition, Employee shall continue to be
covered by any policy of insurance providing indemnification rights for service
as an officer and director of the Company and to all other rights to
indemnification provided by the Company, in each case at least as favorable as
applicable to Employee on the date of this Agreement.
8. Enforcement. It is the intent of the parties that Employee not be
required to incur any expenses associated with the enforcement of Employee's
rights under this Agreement by arbitration, litigation or other legal action,
because the cost and expense thereof would substantially detract from the
benefits intended to be extended to
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Employee hereunder. Accordingly, the Company shall pay Employee on demand the
amount necessary to reimburse Employee in full for all expenses (including all
attorneys' fees and legal expenses) incurred by Employee in attempting to
enforce any of the obligations of the Company under this Agreement, without
regard to outcome, unless the lawsuit brought by Employee is determined to be
frivolous by a court of final jurisdiction.
9. No Mitigation. Employee shall not be required to mitigate the amount of
any payment or benefit provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or benefit provided
for herein be reduced by any compensation earned by other employment or
otherwise.
10. No Set-Off. The Company's obligation to make the payments provided for
in this Agreement and otherwise to perform its obligations hereunder shall not
be affected by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the Company may have
against Employee or others.
11. Taxes. Any payments required under this Agreement shall be subject to
applicable tax withholding.
12. Term of Agreement. The term of this Agreement shall be for three years
from the date hereof and shall be automatically renewed for successive one-year
periods unless the Company notifies Employee in writing that this Agreement will
not be renewed at least 60 days prior to the end of the current term; provided,
however, that (i) this Agreement shall remain in effect for at least two years
after a Change of Control occurring during the term of this Agreement and shall
remain in effect until all of the obligations of the parties hereunder are
satisfied, and (ii) this Agreement shall terminate if, prior to but not in
contemplation of a Change of Control, the employment of Employee with the
Company and its affiliates shall terminate for any reason.
13. Successor Company. The Company shall require any successor or
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the Company,
by agreement in form and substance satisfactory to Employee, to acknowledge
expressly that this Agreement is binding upon and enforceable against the
Company in accordance with the terms hereof, and to become jointly and severally
obligated with the Company to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such
succession or successions had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement. As used in this Agreement, the Company shall mean the Company as
herein before defined and any such successor or successors to its business or
assets, jointly and severally.
14. Notice. All notices and other communications required or permitted
hereunder or necessary or convenient in connection herewith shall be in writing
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and shall be delivered personally or mailed by registered or certified mail,
return receipt requested, or by overnight express courier service, as follows:
If to the Company, to:
Teleflex Incorporated
000 Xxxxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
If to Employee, to:
_______________________
_______________________
or to such other names or addresses as the Company or Employee, as the case may
be, shall designate by notice to the other party hereto in the manner specified
in this Section; provided, however, that if no such notice is given by the
Company following a Change of Control, notice at the last address of the Company
or to any successor pursuant to Section 14 hereof shall be deemed sufficient for
the purposes hereof. Any such notice shall be deemed delivered and effective
when received in the case of personal delivery, five days after deposit, postage
prepaid, with the U.S. Postal Service in the case of registered or certified
mail, or on the next business day in the case of overnight express courier
service.
15. Governing Law. This Agreement shall be governed by and interpreted
under the laws of the Commonwealth of Pennsylvania without giving effect to any
conflict of laws provisions.
16. Contents of Agreement, Amendment and Assignment.
(a) This Agreement supersedes all prior agreements, sets forth the entire
understanding between the parties hereto with respect to the subject matter
hereof and cannot be changed, modified, extended or terminated except upon
written amendment executed by Employee and approved by the Board and executed on
the Company's behalf by a duly authorized officer; provided, however, that
except as stated in Section 7 above, this Agreement is not intended to supersede
or alter Employee's rights under any compensation, benefit plan or program,
unless specifically modified hereunder, in which Employee participated and under
which Employee retains a right to benefits. The provisions of this Agreement may
provide for payments to Employee under certain compensation or bonus plans under
circumstances where such plans would not provide for payment thereof. It is the
specific intention of the parties that the provisions of this Agreement shall
supersede any provisions to the contrary in such plans, to the extent that the
provisions of this Agreement are more favorable to Employee than the terms of
such plans, and such plans shall be deemed to have been amended to correspond
with this Agreement without further action by the Company or the Board.
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(b) Nothing in this Agreement shall be construed as giving Employee any
right to be retained in the employ of the Company.
(c) All of the terms and provisions of this Agreement, including the
covenants of Section 5, shall be binding upon and inure to the benefit of and be
enforceable by the respective heirs, representatives, successors and assigns of
the parties hereto.
17. Severability. If any provision of this Agreement or application
thereof to anyone or under any circumstances shall be determined to be invalid
or unenforceable, such invalidity or unenforceability shall not affect any other
provisions or applications of this Agreement which can be given effect without
the invalid or unenforceable provision or application.
18. Remedies Cumulative; No Waiver. No right conferred upon Employee by
this Agreement is intended to be exclusive of any other right or remedy, and
each and every such right or remedy shall be cumulative and shall be in addition
to any other right or remedy given hereunder or now or hereafter existing at law
or in equity. No delay or omission by Employee in exercising any right, remedy
or power hereunder or existing at law or in equity shall be construed as a
waiver thereof, including, without limitation, any delay by Employee in
delivering a Notice of Termination pursuant to Section 2 hereof after an event
has occurred which would, if Employee had resigned, have constituted a
Termination following a Change of Control pursuant to Section 1 of this
Agreement.
19. Miscellaneous. All section headings are for convenience only. This
Agreement may be executed in several counterparts, each of which is an original.
It shall not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other counterparts.
20. Construction. The word "including" means "including without
limitation."
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first above written.
Teleflex Incorporated
By /s/ Xxxxx X. Xxxxx
-----------------------------
/s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxxx
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EXHIBIT A
GENERAL RELEASE
1. I, ___________________, for and in consideration of certain payments to
be made and the benefits to be provided to me under the Executive Severance
Agreement, dated as of _______________ (the "Agreement") with Teleflex
Incorporated (the "Company") and conditioned upon such payments and provisions,
do hereby REMISE, RELEASE, AND FOREVER DISCHARGE the Company and each of its
past or present subsidiaries and affiliates, its and their past or present
officers, directors, stockholders, employees and agents, their respective
successors and assigns, heirs, executors and administrators, the pension and
employee benefit plans of the Company, or of its past or present subsidiaries or
affiliates, and the past or present trustees, administrators, agents, or
employees of the pension and employee benefit plans (hereinafter collectively
included within the term the "Company"), acting in any capacity whatsoever, of
and from any and all manner of actions and causes of actions, suits, debts,
claims and demands whatsoever in law or in equity, which I ever had, now have,
or hereafter may have, or which my heirs, executors or administrators hereafter
may have, by reason of any matter, cause or thing whatsoever from the beginning
of my employment with the Company to the date of these presents and
particularly, but without limitation of the foregoing general terms, any claims
arising from or relating in any way to my employment relationship and the
termination of my employment relationship with the Company, including but not
limited to, any claims which have been asserted, could have been asserted, or
could be asserted now or in the future under any federal, state or local laws,
including any claims under the Pennsylvania Human Relations Act, 43 Pa. C.S.A.
Sections 951 et. seq., the Rehabilitation Act of 1973, 29 USC Sections 701 et
seq., Title VII of the Civil Rights Act of 1964, 42 USC Sections 2000e et seq.,
the Civil Rights Act of 1991, 2 USC Sections 60 et seq., as applicable, the Age
Discrimination in Employment Act of 1967, 29 USC Sections 621 et seq., the
Americans with Disabilities Act, 29 USC Sections 706 et seq., and the Employee
Retirement Income Security Act of 1974, 29 USC Sections 301 et seq., all as
amended, any contracts between the Company and me and any common law claims now
or hereafter recognized and all claims for counsel fees and costs; provided,
however, that this Release shall not apply to any entitlements under the terms
of the Agreement or under any other plans or programs of the Company in which I
participated and under which I have accrued and become entitled to a benefit
other than under any Company separation or severance plan or programs.
2. Subject to the limitations of paragraph 1 above, I expressly waive all
rights afforded by any statute which expressly limits the effect of a release
with respect to unknown claims. I understand the significance of this release of
unknown claims and the waiver of statutory protection against a release of
unknown claims.
3. I hereby agree and recognize that my employment by the Company was
permanently and irrevocably severed on ___________________, 20__ and the Company
has no obligation, contractual or otherwise to me to hire, rehire or reemploy me
in the future. I acknowledge that the terms of the Agreement provide me with
payments and benefits which are in addition to any amounts to which I otherwise
would have been entitled.
A-1
4. I hereby agree and acknowledge that the payments and benefits provided
by the Company are to bring about an amicable resolution of my employment
arrangements and are not to be construed as an admission of any violation of any
federal, state or local statute or regulation, or of any duty owed by the
Company and that the Agreement was, and this Release is, executed voluntarily to
provide an amicable resolution of my employment relationship with the Company.
5. I hereby acknowledge that nothing in this Release shall prohibit or
restrict me from: (i) making any disclosure of information required by law; (ii)
providing information to, or testifying or otherwise assisting in any
investigation or proceeding brought by, any federal regulatory or law
enforcement agency or legislative body, any self-regulatory organization, or the
Company's designated legal, compliance or human resources officers; or (iii)
filing, testifying, participating in or otherwise assisting in a proceeding
relating to an alleged violation of any federal, state or municipal law relating
to fraud, or any rule or regulation of the Securities and Exchange Commission or
any self-regulatory organization. In addition, I understand that each of the
parties hereto (and each employee, representative, or other agent of such
parties) may disclose to any person, without limitation of any kind, the federal
income tax treatment and federal income tax structure of the transactions
contemplated hereby and all materials (including opinions or other tax analyses)
that are provided to such party relating to such tax treatment and tax
structure.
6. I hereby certify that I have read the terms of this Release, that I
have been advised by the Company to discuss it with my attorney, that I have
received the advice of counsel and that I understand its terms and effects. I
acknowledge, further, that I am executing this Release of my own volition with a
full understanding of its terms and effects and with the intention of releasing
all claims recited herein in exchange for the consideration described in the
Agreement, which I acknowledge is adequate and satisfactory to me. None of the
above named parties, nor their agents, representatives or attorneys have made
any representations to me concerning the terms or effects of this Release other
than those contained herein.
7. I hereby acknowledge that I have been informed that I have the right to
consider this Release for a period of 21 days prior to execution. I also
understand that I have the right to revoke this Release for a period of seven
days following execution by giving written notice to the Company at the address
set forth in Section 14 of the Agreement.
8. I hereby further acknowledge that the terms of Sections 5 and 6 of the
Agreement shall continue to apply for the balance of the time periods provided
therein and that I will abide by and fully perform such obligations.
[SIGNATURE PAGE FOLLOWS]
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Intending to be legally bound hereby, I execute the foregoing Release this ___
day of _____________, 20 ___.
__________________________ ___________________
Witness
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