CONFIDENTIAL RELEASE AND SEPARATION AGREEMENT
Exhibit 10.6
This CONFIDENTIAL RELEASE AND SEPARATION AGREEMENT (the “Agreement”) is made and entered
into by Xxxxxx Xxxxxxx (“XXXXXXX”) and Teleflex Incorporated, its past, present and future
subsidiaries, parents, and affiliates and their past, present, and future employees, officers,
directors, agents, insurers and legal counsel (hereinafter collectively referred to as the
“COMPANY”).
1. XXXXXXX’X EMPLOYMENT. XXXXXXX will cease to be employed by the COMPANY effective March 16,
2007 (the “Termination Date”). The COMPANY wishes to provide XXXXXXX with an orderly transition
from the COMPANY and both XXXXXXX and the COMPANY wish to settle any and all issues and potential
issues which relate or may relate to XXXXXXX’x employment with and departure from the COMPANY.
Accordingly, XXXXXXX will be entitled to the following separation payment and benefits under the
terms of this Agreement.
2. SEPARATION PAYMENT. In consideration for the releases and other covenants set forth in
this Agreement, after this Agreement becomes effective, the COMPANY agrees to provide XXXXXXX:
a. The gross amount of $636,679.50, which equals eighteen (18) months (hereinafter referred to
as the “Separation Period”) of XXXXXXX’x base salary at the time of his termination of employment
with the COMPANY, payable in an equal amount per month, subject to all applicable withholdings and
deductions.
b. Continuation, during the Separation Period, of XXXXXXX’x applicable medical, dental and
prescription benefits on the same basis as, and at the same contribution rate paid by, similarly
situated active employees of the COMPANY. During the Separation Period, the COMPANY will continue
to make at the same rates as it did before the Termination Date the contributions of the employer
to the chosen benefit plans as well as to XXXXXXX’x flexible spending account. In the first
payment made under Paragraph 2(a) as described in the last section below (the lump sum check paid
six (6) months and one (1) day after the Termination Date), the Company shall deduct the amount of
the employer’s contributions to XXXXXXX’x chosen benefits plans and flexible spending account made
during that six (6) month and one (1) day period. Continuation of benefits may cease in the event
that XXXXXXX accepts employment at any time during the Separation Period with an employer from whom
he is eligible to receive medical, dental and prescription benefits, vehicle or vehicle allowance,
as the case may be, or as provided in paragraph 17 of this Agreement, below.
c. After the end of the Separation Period on September 16, 2008 (or if earlier, the date
benefits cease under paragraph 2(b)), XXXXXXX shall be entitled to elect to continue coverage under
COMPANY’s Group Health Plan benefits for the full period of time provided
under Section 4980B of the Internal Revenue Code of 1986, as amended (commonly
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referred to as
“COBRA”). XXXXXXX will be required to pay the full premium for such COBRA coverage.
d. The COMPANY will not contest any claim for government sponsored unemployment compensation
that XXXXXXX may file.
e. Payment for executive outplacement services during the year following the Termination Date
through Right Management or at such other executive outplacement services firm designated by
XXXXXXX, such services not to exceed $20,000.00. In the event that XXXXXXX does not utilize the
full amount of outplacement services to which he is entitled under this Agreement, the remaining
amount shall not be converted into a cash payment to XXXXXXX.
XXXXXXX acknowledges and agrees that the Separation Payment outlined above does not constitute
monies to which he would otherwise be entitled as a result of his prior employment with the
COMPANY, and that these monies constitute fair and adequate compensation for the promises and
covenants of XXXXXXX set forth in this Agreement. In addition, the COMPANY and XXXXXXX agree as
follows relative to other benefit plans in which XXXXXXX participated prior to the Termination
Date:
x. XXXXXXX will cease to be covered under the following programs as of the Termination Date:
short and long term disability, travel accident, vacation accrual, basic and supplemental
accidental death & dismemberment insurance and life insurance, executive life insurance, pension,
car allowance, 401(k) plans, deferred compensation plans, short and long term incentive or bonus
compensation plans, and equity award or compensation plans.
x. XXXXXXX will be provided with paperwork required to continue basic and/or executive life
insurance coverage under the plan’s conversion and/or portability features at XXXXXXX’x own expense
and to the extent permitted by the carrier.
x. XXXXXXX will be paid four weeks’ accrued vacation in a lump sum, subject to all applicable
withholdings and deductions, on the regularly scheduled payroll date immediately following the
expiration of the 7-day revocation period set forth in paragraph 20 of this Agreement.
x. XXXXXXX will be allowed to maintain the use of the company car provided to him through the
term of the current lease which is due to expire in or about August 2007. Following the expiration
of the current lease, the COMPANY shall pay XXXXXXX a car allowance of $2,200.00 per month during
the remainder of the Separation Period.
Amounts paid pursuant to sections 2(a) and (i) of this Agreement, above, shall be paid in
accordance with the COMPANY’s normal payroll schedule and payroll practices in effect from time to
time; provided, however, that in accordance with Section 409A of the Internal Revenue Code of 1986,
as amended, (“Section 409A”), the payment shall be made on COMPANY’s regularly scheduled payroll
date which immediately follows the date that is six (6) months and one (1) day after the
Termination Date (or such earlier date as is permitted by
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Section 409A). The first payment after
the six (6) month and one (1) day delay shall be equal to
the sum of all payments otherwise payable from XXXXXXX’X Termination Date until actual
commencement of payments in a single lump sum with all following payments under this Agreement made
at the regularly scheduled payroll interval. Each payment comprising the delayed initial lump sum
payment shall be credited with interest at the rate of 6% per annum for the period of delay after
the appropriate payroll date.
Separation payments may stop as provided in paragraph 17 of this Agreement below.
3. XXXXXXX’X RELEASE OF CLAIMS. For and in consideration of the Separation Payment as
described in Paragraph 2 of this Agreement, XXXXXXX hereby irrevocably and unconditionally releases
and forever discharges the COMPANY from any and all claims and causes of action of any nature, both
past and present, known and unknown, foreseen and unforeseen, which XXXXXXX has or which could be
asserted on his behalf by any other person or entity, resulting from or relating to any act or
omission of any kind occurring on or before the date of the execution of this Agreement. XXXXXXX
understands and agrees that this Release includes, but is not limited to, the following:
a. All claims and causes of action arising under contract, tort or other common
law, including, without limitation, breach of contract, fraud, estoppel,
misrepresentation, express or implied duties of good faith and fair dealing,
wrongful discharge, discrimination, retaliation, harassment, negligence, gross
negligence, false imprisonment, assault and battery, conspiracy, intentional or
negligent infliction of emotional distress, slander, libel, defamation, refusal to
perform an illegal act and invasion of privacy.
b. All claims and causes of action arising under any federal, state, or local
law, regulation, or ordinance, including without limitation, the Civil Rights Act of
1964, as amended, the Civil Rights Act of 1866, the Americans With Disabilities Act,
the Age Discrimination in Employment Act (“ADEA”) (which prohibits age
discrimination in employment), the Older Workers Benefit Protection Act, the Fair
Labor Standards Act, the Family and Medical Leave Act, the Employee Retirement
Income Security Act, the Xxxxxxxx-Xxxxx Act and/or any other federal or state
whistleblower protection laws, and relevant state laws including, but not limited to
the Pennsylvania Human Relations Act, as well as any claims for wages, employee
benefits, vacation pay, severance pay, pension or profit sharing benefits, health or
welfare benefits, bonus compensation, vesting of stock options, stock, commissions,
deferred compensation or other remuneration, or employment benefits or compensation.
c. All claims and causes of action for past or future loss of pay or benefits,
expenses, damages for pain and suffering, mental anguish or emotional distress
damages, liquidated damages, punitive damages, compensatory damages, attorney’s
fees, interest, court costs, physical or mental injury, damage to
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reputation, and
any other injury, loss, damage or expense or any other legal or equitable remedy of
any kind whatsoever.
d. All claims and causes of action arising out of or in any way connected with,
directly or indirectly, XXXXXXX’x employment with the COMPANY, or any incident
thereof, including, without limitation, XXXXXXX’x treatment by the COMPANY; the
terms and conditions of the XXXXXXX’x employment; and the separation of XXXXXXX’x
employment.
XXXXXXX understands that this Agreement does not release his right, if any, to benefits
XXXXXXX is entitled to under any COMPANY plan qualified under Section 401(a) of the Internal
Revenue Code of 1986, as amended (the “Code”), including the Teleflex Incorporated Retirement
Income Plan and the Teleflex 401(k) Savings Plan, and COBRA benefits pursuant to Section 4980B of
the Code.
4. RETURN OF COMPANY PROPERTY. XXXXXXX shall return, in good working order, any and all
property of the COMPANY that is in his possession, custody or control on or before April 15, 2007.
Such property includes, but is not limited to, keys, software, calculators, equipment, credit
cards, forms, files, manuals, correspondence, business cards, personnel data, lists of or other
information regarding customers, contacts and/or employees, contracts, contract information,
agreements, leases, plans, brochures, catalogues, training materials, computer tapes and diskettes
or other portable media.
5. TAX ISSUES. XXXXXXX and the COMPANY will report, as may be required by law for income tax
purposes, their respective payment and receipt of the Separation Payment. Each party shall bear
his/its respective tax liabilities, if any, arising from this Agreement. XXXXXXX acknowledges that
the COMPANY has made no representations regarding the tax consequences of any amount received by
him pursuant to the terms of this Agreement.
6. NO FUTURE LAWSUITS. XXXXXXX promises never to file a lawsuit alleging any of the claims
that are released in Paragraph 3 of this Agreement (other than an action filed solely for the
purpose of challenging the validity of the waiver of claims under the Age Discrimination in
Employment Act).
7. NON-RELEASE OF FUTURE CLAIMS. This Agreement does not waive or release any rights or
claims XXXXXXX may have under the Age Discrimination in Employment Act that arise after the date
XXXXXXX signs this Agreement.
8. NON-ADMISSION. XXXXXXX and COMPANY agree that this Agreement and the payment of money to
him by the COMPANY are not an admission by either party of any wrongdoing, nor an admission by
either party of any violation of the other’s rights or of any violation of contract or statutory or
common law.
9. NO REHIRE. XXXXXXX agrees that, subsequent to his execution of this Agreement, he shall
not be eligible for rehire by the COMPANY, or any of its subsidiaries,
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affiliates, parent
companies, or other related entities, and shall not apply for any position with the COMPANY
subsequent to the effective date of the Agreement.
10. NON-DISPARAGEMENT. XXXXXXX specifically covenants and agrees not to, directly or
indirectly, make or cause to be made to anyone any statement, orally or in writing, criticizing or
disparaging the COMPANY with respect to his employment with the COMPANY. XXXXXXX specifically
covenants and agrees not to, directly or indirectly, make or cause to be made to anyone any
statement, orally or in writing, criticizing or disparaging the COMPANY, or commenting in a
negative fashion on the operations or business reputation of the COMPANY.
Likewise, COMPANY covenants and agrees not to, directly or indirectly, criticize or disparage
XXXXXXX with respect to his employment. COMPANY agrees that if anyone should inquire concerning
XXXXXXX’x prior employment, the only information that will be disclosed will be the last position
held by XXXXXXX and the dates of his employment
11. CONFIDENTIALITY. XXXXXXX acknowledges and agrees that this Agreement and its terms and
conditions shall remain confidential. XXXXXXX and any representative shall not disclose or discuss
the contents, terms, or conditions of the Agreement, except to XXXXXXX’x spouse, lending
institutions, accountants, counsel, financial advisors, tax advisor(s), or the Internal Revenue
Service, or as otherwise required by law This confidentiality provision is contractual and the
terms are material to this Agreement. Breach of the confidentiality provision by XXXXXXX shall
entitle the COMPANY to seek legal remedies for breach of contract and, in the event that the
COMPANY is successful in any legal proceeding to enforce this provision, it shall be entitled to
recover from XXXXXXX its reasonable expenses, including attorneys’ fees incurred in the prosecution
of any legal proceeding.
12. CONTINUING OBLIGATIONS. XXXXXXX acknowledges that in the course of his employment with
the COMPANY he has obtained confidential and proprietary information including, but not limited to,
financial, business, product, customer and marketing information, plans, forecasts and strategies,
and trade secrets. XXXXXXX acknowledges and agrees that he has a continuing obligation to maintain
the confidentiality of all such non-public information even after the termination of his employment
with the COMPANY.
13. NON-SOLICITATION OF EMPLOYEES. XXXXXXX acknowledges and agrees that, during the
Separation Period, he will not, without the express written consent of the COMPANY’s CEO, directly
or indirectly, solicit or assist any other person or entity in soliciting an employee of the
COMPANY, or any person who was an employee of the COMPANY at any time within six (6) months of the
hire or attempted hire.
14. COVENANT NOT TO COMPETE. XXXXXXX agrees that, during the Separation Period, he will not,
at any time, directly or indirectly, engage in, or have any interest on behalf of himself or others
in any person or business other than the COMPANY (whether as an employee, officer, director, agent,
security holder, creditor, partner, joint venturer, beneficiary under a trust, investor, or
consultant ) that engages in similar business activities to the COMPANY in a particular market and
product line, and in the specific geographic areas in which the COMPANY is
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engaged or has been
engaged in the preceding twelve (12) months for that particular market and product line (the
“Business Activities”).
Notwithstanding the foregoing, XXXXXXX may:
(a) engage, participate or invest in, or be employed by an entity that is engaged in the
Business Activities (a “Competing Entity”) so long as (i) the Annual Revenues derived by the
COMPANY from the Business Activities in which the Competing Entity is engaged do not exceed $50
million in the aggregate; and (ii) the Annual Revenues derived by the Competing Entity from the
Business Activities do not exceed $50 million in the aggregate. For purposes of paragraph 14(a),
the term “Annual Revenues” shall mean annual revenues for the most recently completed fiscal year;
or
(b) notwithstanding Paragraph 14(a) above, in the event the limitations in Paragraph 14(a) are
exceeded but the Business Activities for which XXXXXXX has oversight (i.e. if CFO for the Competing
Entity or CFO of a division or subsidiary of the Competing Entity than in each such specific case)
do not exceed 5% of total Annual Revenues for the Competing Entity, division or subsidiary, as the
case may be, XXXXXXX may engage, participate or invest in, or be employed by such Competing Entity,
division or subsidiary as the case may be; or
(c) acquire solely as an investment not more than 2% of any class of securities of any
Competing Entity if such class of securities is listed on a national securities exchange or on the
Nasdaq system, so long as XXXXXXX remains a passive investor in such entity.
In addition, XXXXXXX hereby agrees that, during the Separation Period, he will not directly or
indirectly call on or solicit for the purposes of diverting or taking away from the COMPANY
(including, by divulging any Confidential Information to any competitor or potential competitor of
the COMPANY) any person or entity who is at the Termination Date, or at any time during the twelve
(12) month period prior to the Termination Date had been, a customer of the COMPANY with whom
XXXXXXX had direct personal contact as a representative of the COMPANY or a potential customer
whose identity is known to XXXXXXX at the Termination Date as one whom the COMPANY was actively
soliciting as a potential customer within six (6) months prior to the Termination Date.
The parties agree that the restrictions in these covenants are reasonable and necessary to
protect COMPANY’s legitimate interests, are reasonable in time and scope, are designed to eliminate
competition that otherwise would be unfair to COMPANY, and do not operate as a bar to XXXXXXX’x
means of support.
15. COOPERATION. XXXXXXX acknowledges and agrees that from and after the effective date of
this Agreement, he will cooperate fully with the COMPANY, its officers, employees, agents,
affiliates and attorneys in the defense or prosecution of, or in preparation for the defense or
prosecution of any lawsuit, dispute, investigation or other legal proceedings (“Proceedings”).
XXXXXXX further acknowledges and agrees that he will cooperate fully with the COMPANY, its
officers, employees, agents, affiliates and attorneys on any matter related to COMPANY business
(“Matters”) during the period of XXXXXXX’x employment.
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Such cooperation shall include providing true and accurate information or documents
concerning, or affidavits, declarations or testimony about, all or any matters at issue in any
Proceedings/Matters as shall from time-to-time be requested by the COMPANY, and shall be within the
knowledge of XXXXXXX. Such cooperation shall be provided by XXXXXXX without
remuneration, but XXXXXXX shall be entitled to reimbursement for all reasonable and appropriate
expenses incurred by him in so cooperating including, by way of example, airfare, hotel
accommodations, meal charges and other similar expenses to attend Proceedings/Matters outside of
the city of XXXXXXX’x residence. In the event XXXXXXX is asked by a third party to provide
information regarding the COMPANY, or is called other than by the COMPANY to testify in any
Proceeding/Matter related to the COMPANY, he will notify the COMPANY as soon as possible in order
to give the COMPANY a reasonable opportunity to respond and/or participate in such
Proceeding/Matter.
16. FEES AND COSTS. The parties shall bear their own attorneys’ fees and costs associated
with this Agreement.
17. CONSEQUENCES OF BREACH BY XXXXXXX. XXXXXXX acknowledges that it would be unfair for
XXXXXXX to retain or receive the Separation Payments if XXXXXXX breaches the promises given by
XXXXXXX herein (excluding a lawsuit filed by XXXXXXX solely to challenge the validity of the Age
Discrimination in Employment Act waiver), and therefore, in the event of a breach by XXXXXXX of the
promises made by him in this Agreement (excluding a lawsuit filed by XXXXXXX solely to challenge
the validity of the Age Discrimination in Employment Act waiver), as determined by the COMPANY
reasonably and in good faith, the COMPANY shall be entitled to cease payment of the Separation
Payments which have not yet been paid to XXXXXXX, and shall further be entitled to the return of
any and all Separation Payments that have already been made to XXXXXXX. This provision will not
limit XXXXXXX’x liability if COMPANY’s actual damages exceed the amount received by XXXXXXX under
this Agreement.
Furthermore, XXXXXXX agrees that COMPANY would be irreparably damaged in the event that he breaches
his promises in Paragraphs 10, 11, 12, 13, and/or 14 and agrees that COMPANY shall be entitled, in
addition to any other remedy to which it may be entitled at law or in equity, to an injunction to
enforce the terms of this Agreement. XXXXXXX hereby waives any requirement that COMPANY post any
bond or other security in connection with such injunction.
18. CHOICE OF LAW/VENUE. This Agreement shall be governed by, construed, and enforced in
accordance with, and subject to, the laws of the Commonwealth of Pennsylvania or federal law, where
applicable, without regard to the conflict of law principles of any jurisdiction. In the event
there shall be any dispute arising out of the terms and conditions of, or in connection with, this
Agreement, the party seeking relief shall submit such dispute to the United States District Court
for the Eastern District of Pennsylvania, or, if federal jurisdiction is lacking, the Court of
Common Pleas of Xxxxxxxxxx County, Pennsylvania.
19. TIME LIMITS. Upon receipt of this Agreement, XXXXXXX shall have up to twenty-one (21)
calendar days to consider and decide whether or not to sign and return it to COMPANY. If XXXXXXX
decides to sign this Agreement at any time prior to end of the twenty-one day period, XXXXXXX
agrees to immediately send the signed Agreement to the COMPANY,
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by registered or certified
United States mail, return receipt requested, or by commercial overnight carrier requiring
signature upon delivery, to the attention of Xxxxxxxx X. Xxxxxx at Teleflex Incorporated, 000
Xxxxx Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000, on the date it is signed by XXXXXXX. This Agreement
shall be considered to have been delivered to and received by the COMPANY at the address set forth
above on the date it is postmarked.
20. REVOCATION. XXXXXXX may revoke this Agreement within seven (7) days of XXXXXXX signing
it. Revocation must be made by delivering a written notice of revocation to Xxxxxxxx X. Xxxxxx at
the address set forth in paragraph 19, above, either by hand delivery, facsimile or by registered
or certified United States mail, return receipt requested, or by commercial overnight carrier
requiring signature upon delivery. If XXXXXXX revokes this Agreement it shall not be effective or
enforceable and XXXXXXX shall not receive the consideration promised by the COMPANY described in
the Paragraph 2 of this Agreement. If XXXXXXX does not revoke this Agreement, it shall become
effective on the eighth (8th) day after he signs it.
21. ENTIRE AGREEMENT. It is expressly understood and agreed that this Agreement embodies the
entire agreement between the Parties and supersedes any and all prior agreements, arrangements, or
understandings between and among them with respect to the subject matter herein, and shall
specifically supersede the July 2, 2004 offer letter signed by Xxxxx X. Xxxxx and XXXXXXX. No oral
understandings, statements, promises, terms, conditions, obligations, or agreements contrary or in
addition to the terms of this Agreement exist. This Agreement may not be changed by oral
representations, and may only be amended by written instrument executed by XXXXXXX and the
COMPANY’s CEO. The provisions of this Agreement are severable and if any provision is determined to
be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall continue
in full force and effect.
22. OTHER REPRESENTATIONS/ADVICE OF COUNSEL. XXXXXXX hereby represents and certifies that he:
(a) has carefully read all of this Agreement; (b) has been given a fair opportunity to discuss and
negotiate the terms of this Agreement; (c) understands its provisions; (d) has been advised in
writing to consult with an attorney before signing this Agreement; (e) has determined that it is in
his best interests to enter into this Agreement; (f) has not been influenced to sign this Agreement
by any statement or representation by the COMPANY not contained in this Agreement; and (g) enters
into this Agreement knowingly and voluntarily.
By my initials set forth below, I agree that I was given a copy of this Agreement to consider for
possible signing on .
[XXXXXXX’x Initials]
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READ THIS AGREEMENT CAREFULLY BEFORE SIGNING
We the undersigned, do hereby sign and agree to the terms set forth in the Confidential Release and
Settlement Agreement, on the dates set forth below:
/s/ Xxxxxx Xxxxxxx
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3/18/2007 | |||
/s/ Xxxxxxxx X. Xxxxxx
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3/18/2007 | |||
Senior Vice President & General Counsel Teleflex Incorporated |
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