Teleflex Inc 10-Q for FY2020 Q1
Teleflex Inc (TFX)
10-Q
2020-04-30
For: 2020-03-29
View Original
Added on
April 07, 2026
About this 10-Q
Teleflex Inc filed this 10-Q on April 30, 2020, covering the quarter ended March 29, 2020 (FY2020 Q1).
Headline figures
Quarter ended March 29, 2020, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $630.64M
- up 2.8% from $613.58M a year earlier
- Net income
- $131.15M
- up 220.7% from net income of $40.9M a year earlier
- Diluted EPS
- $2.78
- up 219.5% from $0.87 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
| (Mark One) | ||||||||
| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | ||||||||
For the quarterly period ended March 29, 2020
OR
| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |||||
For the transition period from to .
Commission file number 1-5353
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation or organization) | (I.R.S. employer identification no.) | |||||||
(Address of principal executive offices and zip code)
(610 ) 225-6800
(Registrant’s telephone number, including area code)
(None)
(Former Name, Former Address and Former Fiscal Year,
If Changed Since Last Report)
| Securities registered pursuant to Section 12(b) of the Act: | ||||||||||||||||||||||||||
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||||||||||||||||||||
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and "emerging growth company" in Rule 12b-2 of the Exchange Act.
| ☒ | Accelerated filer | ☐ | |||||||||||||||||||||||||||
| Non-accelerated filer | ☐ | Smaller reporting company | |||||||||||||||||||||||||||
| Emerging growth company | |||||||||||||||||||||||||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
The registrant had 46,425,420 shares of common stock, par value $1.00 per share, outstanding as of April 28, 2020.
TELEFLEX INCORPORATED
QUARTERLY REPORT ON FORM 10-Q
FOR THE QUARTER ENDED MARCH 29, 2020
TABLE OF CONTENTS
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| Item 4: | ||||||||||||||||||||
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| Item 1A: | ||||||||||||||||||||
| Item 2: | ||||||||||||||||||||
| Item 3: | ||||||||||||||||||||
| Item 4: | ||||||||||||||||||||
| Item 5: | ||||||||||||||||||||
| Item 6: | ||||||||||||||||||||
1
PART I — FINANCIAL INFORMATION
Item 1. Financial Statements
TELEFLEX INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
| Three Months Ended | |||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||
| (Dollars and shares in thousands, except per share) | |||||||||||||||||
| Net revenues | $ | $ | |||||||||||||||
| Cost of goods sold | |||||||||||||||||
| Gross profit | |||||||||||||||||
| Selling, general and administrative expenses | |||||||||||||||||
| Research and development expenses | |||||||||||||||||
| Restructuring and impairment charges | |||||||||||||||||
| Gain on sale of assets | ( | ||||||||||||||||
| Income from continuing operations before interest and taxes | |||||||||||||||||
| Interest expense | |||||||||||||||||
| Interest income | ( | ( | |||||||||||||||
| Income from continuing operations before taxes | |||||||||||||||||
| Taxes on income from continuing operations | |||||||||||||||||
| Income from continuing operations | |||||||||||||||||
| Operating loss from discontinued operations | ( | ( | |||||||||||||||
| Tax benefit on operating loss from discontinued operations | ( | ( | |||||||||||||||
| Loss from discontinued operations | ( | ( | |||||||||||||||
| Net income | $ | $ | |||||||||||||||
| Earnings per share: | |||||||||||||||||
| Basic: | |||||||||||||||||
| Income from continuing operations | $ | $ | |||||||||||||||
| Loss from discontinued operations | ( | ||||||||||||||||
| Net income | $ | $ | |||||||||||||||
| Diluted: | |||||||||||||||||
| Income from continuing operations | $ | $ | |||||||||||||||
| Loss from discontinued operations | ( | ||||||||||||||||
| Net income | $ | $ | |||||||||||||||
| Weighted average common shares outstanding | |||||||||||||||||
| Basic | |||||||||||||||||
| Diluted | |||||||||||||||||
The accompanying notes are an integral part of the condensed consolidated financial statements.
2
TELEFLEX INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(Unaudited)
| Three Months Ended | |||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||
| Net income | $ | $ | |||||||||||||||
| Other comprehensive income (loss), net of tax: | |||||||||||||||||
Foreign currency translation, net of tax of $( | ( | ( | |||||||||||||||
Pension and other postretirement benefit plans adjustment, net of tax of $( | |||||||||||||||||
Derivatives qualifying as hedges, net of tax of $ | ( | ( | |||||||||||||||
| Other comprehensive (loss) income, net of tax: | ( | ||||||||||||||||
| Comprehensive income | $ | $ | |||||||||||||||
The accompanying notes are an integral part of the condensed consolidated financial statements.
3
TELEFLEX INCORPORATED
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
| March 29, 2020 | December 31, 2019 | ||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||
| ASSETS | |||||||||||||||||
| Current assets | |||||||||||||||||
| Cash and cash equivalents | $ | $ | |||||||||||||||
| Accounts receivable, net | |||||||||||||||||
| Inventories | |||||||||||||||||
| Prepaid expenses and other current assets | |||||||||||||||||
| Prepaid taxes | |||||||||||||||||
| Total current assets | |||||||||||||||||
| Property, plant and equipment, net | |||||||||||||||||
| Operating lease assets | |||||||||||||||||
| Goodwill | |||||||||||||||||
| Intangible assets, net | |||||||||||||||||
| Deferred tax assets | |||||||||||||||||
| Other assets | |||||||||||||||||
| Total assets | $ | $ | |||||||||||||||
| LIABILITIES AND EQUITY | |||||||||||||||||
| Current liabilities | |||||||||||||||||
| Current borrowings | $ | $ | |||||||||||||||
| Accounts payable | |||||||||||||||||
| Accrued expenses | |||||||||||||||||
| Current portion of contingent consideration | |||||||||||||||||
| Payroll and benefit-related liabilities | |||||||||||||||||
| Accrued interest | |||||||||||||||||
| Income taxes payable | |||||||||||||||||
| Other current liabilities | |||||||||||||||||
| Total current liabilities | |||||||||||||||||
| Long-term borrowings | |||||||||||||||||
| Deferred tax liabilities | |||||||||||||||||
| Pension and postretirement benefit liabilities | |||||||||||||||||
| Noncurrent liability for uncertain tax positions | |||||||||||||||||
| Noncurrent contingent consideration | |||||||||||||||||
| Noncurrent operating lease liabilities | |||||||||||||||||
| Other liabilities | |||||||||||||||||
| Total liabilities | |||||||||||||||||
| Commitments and contingencies | |||||||||||||||||
| Total shareholders' equity | |||||||||||||||||
| Total liabilities and shareholders' equity | $ | $ | |||||||||||||||
The accompanying notes are an integral part of the condensed consolidated financial statements.
4
TELEFLEX INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
| Three Months Ended | |||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||
| Cash flows from operating activities of continuing operations: | |||||||||||||||||
| Net income | $ | $ | |||||||||||||||
| Adjustments to reconcile net income to net cash (used in) provided by operating activities: | |||||||||||||||||
| Loss from discontinued operations | |||||||||||||||||
| Depreciation expense | |||||||||||||||||
| Intangible asset amortization expense | |||||||||||||||||
| Deferred financing costs and debt discount amortization expense | |||||||||||||||||
| Gain on sale of assets | ( | ||||||||||||||||
| Fair value step up of acquired inventory sold | |||||||||||||||||
| Changes in contingent consideration | ( | ||||||||||||||||
| Impairment of long-lived assets | |||||||||||||||||
| Stock-based compensation | |||||||||||||||||
| Deferred income taxes, net | |||||||||||||||||
| Payments for contingent consideration | ( | ( | |||||||||||||||
| Interest benefit on swaps designated as net investment hedges | ( | ( | |||||||||||||||
| Other | ( | ||||||||||||||||
| Changes in assets and liabilities, net of effects of acquisitions and disposals: | |||||||||||||||||
| Accounts receivable | ( | ( | |||||||||||||||
| Inventories | ( | ( | |||||||||||||||
| Prepaid expenses and other assets | ( | ||||||||||||||||
| Accounts payable, accrued expenses and other liabilities | ( | ||||||||||||||||
| Income taxes receivable and payable, net | |||||||||||||||||
| Net cash (used in) provided by operating activities from continuing operations | ( | ||||||||||||||||
| Cash flows from investing activities of continuing operations: | |||||||||||||||||
| Expenditures for property, plant and equipment | ( | ( | |||||||||||||||
| Proceeds from sale of assets | |||||||||||||||||
| Payments for businesses and intangibles acquired, net of cash acquired | ( | ( | |||||||||||||||
| Net cash used in investing activities from continuing operations | ( | ( | |||||||||||||||
| Cash flows from financing activities of continuing operations: | |||||||||||||||||
| Proceeds from new borrowings | |||||||||||||||||
| Net proceeds from share based compensation plans and the related tax impacts | ( | ||||||||||||||||
| Payments for contingent consideration | ( | ( | |||||||||||||||
| Dividends paid | ( | ( | |||||||||||||||
| Net cash provided by (used in) financing activities from continuing operations | ( | ||||||||||||||||
| Cash flows from discontinued operations: | |||||||||||||||||
| Net cash (used in) provided by operating activities | ( | ||||||||||||||||
| Net cash (used in) provided by discontinued operations | ( | ||||||||||||||||
| Effect of exchange rate changes on cash and cash equivalents | ( | ( | |||||||||||||||
| Net increase (decrease) in cash and cash equivalents | ( | ||||||||||||||||
| Cash and cash equivalents at the beginning of the period | |||||||||||||||||
| Cash and cash equivalents at the end of the period | $ | $ | |||||||||||||||
The accompanying notes are an integral part of the condensed consolidated financial statements.
5
TELEFLEX INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY
(Unaudited)
| Common Stock | Additional Paid In Capital | Retained Earnings | Accumulated Other Comprehensive Loss | Treasury Stock | Total | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Shares | Dollars | Shares | Dollars | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| (Dollars and shares in thousands, except per share) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Balance at December 31, 2019 | $ | $ | $ | $ | ( | $ | ( | $ | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Cumulative effect adjustment resulting from the adoption of new accounting standards | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Net income | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cash dividends ($ | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Other comprehensive income | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Shares issued under compensation plans | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Deferred compensation | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Balance at March 29, 2020 | $ | $ | $ | $ | ( | $ | ( | $ | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Common Stock | Additional Paid In Capital | Retained Earnings | Accumulated Other Comprehensive Loss | Treasury Stock | Total | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Shares | Dollars | Shares | Dollars | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| (Dollars and shares in thousands, except per share) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Balance at December 31, 2018 | $ | $ | $ | $ | ( | $ | ( | $ | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Cumulative effect adjustment resulting from the adoption of new accounting standards | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Net income | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cash dividends ($ | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Other comprehensive income | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Shares issued under compensation plans | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Deferred compensation | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Balance at March 31, 2019 | $ | $ | $ | $ | ( | $ | ( | $ | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
The accompanying notes are an integral part of the condensed consolidated financial statements.
6
TELEFLEX INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
Note 1 — Basis of presentation
The accompanying unaudited condensed consolidated financial statements of Teleflex Incorporated and its subsidiaries (“we,” “us,” “our" and “Teleflex”) are prepared on the same basis as its annual consolidated financial statements.
In the opinion of management, the financial statements reflect all adjustments, which are of a normal recurring nature, necessary for the fair statement of the financial statements for interim periods in accordance with accounting principles generally accepted in the United States of America ("GAAP") and Rule 10-01 of Securities and Exchange Commission ("SEC") Regulation S-X, which sets forth the instructions for the form and content of presentation of financial statements included in Form 10-Q. The preparation of condensed consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements, as well as the reported amounts of revenue and expenses during the reporting period. Actual results could differ from those estimates particularly as it relates to estimates reliant on forecasts and other assumptions impacted by the COVID-19 pandemic, which are described in more detail in the 'Risks and uncertainties' section below. The results of operations for the periods reported are not necessarily indicative of those that may be expected for a full year.
In accordance with applicable accounting standards and as permitted by Rule 10-01 of Regulation S-X, the accompanying condensed consolidated financial statements do not include all of the information and footnote disclosures that are required to be included in our annual consolidated financial statements. Therefore, our quarterly condensed consolidated financial statements should be read in conjunction with our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2019. For the three months ended March 29, 2020 and March 31, 2019, we reclassified intangible asset amortization expense of $20.9 20.8
Risks and Uncertainties
We are subject to risks and uncertainties as a result of the COVID-19 pandemic. The extent of the impact of the COVID-19 pandemic on our business is highly uncertain and difficult to predict due to the rapidly evolving environment and continued uncertainties created by the COVID-19 pandemic. Among other things, the response to the COVID-19 pandemic has had the effect of reducing the number of elective procedures being carried out by our customers, thereby reducing demand for products used in elective procedures, while creating an increase in demand for products used in the treatment of patients with COVID-19. The COVID-19 pandemic has significantly impacted economic activity and markets around the world. If the pandemic continues and conditions worsen, it could negatively impact our business, results of operations, financial condition and liquidity in numerous ways, including, but not limited to, lower revenues in our product categories dependent on elective procedures; further disruption in the manufacture of our products including increased manufacturing and distribution costs; extended delays in or defaults on payments of outstanding receivables; and increased volatility and pricing in capital markets. Further, the COVID-19 pandemic may cause disruption to our suppliers or their suppliers and/or the distribution of our products, whether through our direct sales force or our distributors.
The severity of the impact of the COVID-19 pandemic on our business will depend on a number of factors, including, but not limited to, the duration and severity of the pandemic and the extent and severity of the impact on our employees, contractors, suppliers, customers and other business partners, all of which are uncertain and cannot be predicted. As of the date of issuance of these condensed consolidated financial statements, the extent to which the COVID-19 pandemic may materially impact our financial condition, liquidity, or results of operations is uncertain.
Note 2 — Recently issued accounting standards
7
TELEFLEX INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(Unaudited)
that reflects the current estimate of credit losses expected to be incurred over the life of the financial asset, based not only on historical experience and current conditions, but also on reasonable forecasts. The main objective of the new guidance is to provide financial statement users with more useful information in making decisions about the expected credit losses on financial instruments and other commitments to extend credit held by a reporting entity at each reporting date. We adopted the new standard on January 1, 2020 using a modified retrospective transition approach by recognizing a cumulative-effect adjustment of $0.8 million to reduce our opening balance of retained earnings as of the adoption date. Prior period amounts have not been adjusted and continue to reflect our historical accounting.
In December 2019, the FASB issued new guidance that simplifies various aspects of accounting for income taxes including those related to the step-up in the tax basis of goodwill, intraperiod tax allocations and the interim period effects of changes in tax laws or rates. The new guidance is effective for fiscal years beginning after December 15, 2020, including interim periods within those fiscal years. Early adoption is permitted. The majority of the modifications under the new guidance will be applied on a modified retrospective basis through a cumulative-effect adjustment to retained earnings on January 1, 2021. We are currently evaluating the impact the guidance will have on our consolidated financial statements and related disclosures.
In March 2020, the SEC adopted final rules that amend the financial disclosure requirements for subsidiary issuers and guarantors of registered debt securities in Rule 3-10 of Regulation S-X. The SEC amended its financial disclosure requirements for companies that conduct registered debt offerings involving subsidiaries as either issuers or guarantors and affiliates whose securities are pledged as collateral. The SEC narrowed the circumstances that require separate financial statements of subsidiary issuers and guarantors and streamlined the alternative disclosures required in lieu of those statements. The SEC replaced the requirement for separate financial statements of affiliates whose securities are pledged as collateral for registered securities with requirements similar to those adopted for subsidiary issuers and guarantors. The new disclosures may be located, in all cases, outside of the financial statements. The rule is effective January 4, 2021, but earlier compliance is permitted. We adopted the new rule during the first quarter of 2020. The disclosures are now located within the Liquidity and Capital Resources section of Item 2 - Management's Discussion and Analysis of Financial Condition and Results of Operations.
From time to time, new accounting guidance is issued by the FASB or other standard setting bodies that is adopted by us as of the effective date or, in some cases where early adoption is permitted, in advance of the effective date. We have assessed the recently issued guidance that is not yet effective and, unless otherwise indicated above, believes the new guidance will not have a material impact on the consolidated results of operations, cash flows or financial position.
Note 3 - Net revenues
8
TELEFLEX INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(Unaudited)
The following table disaggregates revenue by global product category for the three months ended March 29, 2020 and March 31, 2019.
| Three Months Ended | |||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||
| Vascular access | $ | $ | |||||||||||||||
| Anesthesia | |||||||||||||||||
| Interventional | |||||||||||||||||
| Surgical | |||||||||||||||||
| Interventional urology | |||||||||||||||||
| OEM | |||||||||||||||||
Other (1) | |||||||||||||||||
Net revenues (2) | $ | $ | |||||||||||||||
(1) Revenues in the "Other" category in the table above include revenues generated from sales of our respiratory and urology products (other than interventional urology products).
(2) The product categories listed above are presented on a global basis, while each of our reportable segments other than the OEM reportable segment are defined based on the geographic location of its operations; the OEM reportable segment operates globally. Each of the geographically based reportable segments include net revenues from each of the non-OEM product categories listed above.
Note 4 — Acquisitions
9
TELEFLEX INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(Unaudited)
Note 5 — Restructuring and impairment charges
We have ongoing restructuring programs primarily related to the relocation of manufacturing operations to existing lower-cost locations and related workforce reductions (referred to as 2019, 2018 and 2014 Footprint realignment plans). The following tables provide a summary of our cost estimates and other information associated with these ongoing Footprint realignment plans:
| 2019 Footprint realignment plan | 2018 Footprint realignment plan | 2014 Footprint realignment plan | |||||||||||||||||||||||||||
| Program expense estimates: | (Dollars in millions) | ||||||||||||||||||||||||||||
| Termination benefits | $ | $ | $ | ||||||||||||||||||||||||||
Other costs (1) | |||||||||||||||||||||||||||||
| Restructuring charges | |||||||||||||||||||||||||||||
Restructuring related charges (2) | |||||||||||||||||||||||||||||
| Total restructuring and restructuring related charges | $ | $ | $ | ||||||||||||||||||||||||||
| Other program estimates: | |||||||||||||||||||||||||||||
| Expected cash outlays | $ | $ | $ | ||||||||||||||||||||||||||
| Expected capital expenditures | $ | $ | $ | ||||||||||||||||||||||||||
| Other program information: | |||||||||||||||||||||||||||||
| Period initiated | February 2019 | May 2018 | April 2014 | ||||||||||||||||||||||||||
| Estimated period of substantial completion | 2022 | 2024 | 2021 | ||||||||||||||||||||||||||
| Aggregate restructuring charges | $ | $ | $ | ||||||||||||||||||||||||||
| Restructuring reserve: | |||||||||||||||||||||||||||||
| As of March 29, 2020 | $ | $ | $ | ||||||||||||||||||||||||||
| Restructuring related charges incurred: | |||||||||||||||||||||||||||||
| For three months ended March 29, 2020 | $ | $ | $ | ||||||||||||||||||||||||||
| Aggregate restructuring related charges | $ | $ | $ | ||||||||||||||||||||||||||
(1)Includes facility closure, employee relocation, equipment relocation and outplacement costs.
| Three Months Ended March 29, 2020 | |||||||||||||||||||||||||||||
| Termination benefits | Other costs (1) | Total | |||||||||||||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||||||||||||||
| 2019 Footprint realignment plan | $ | $ | $ | ||||||||||||||||||||||||||
| 2018 Footprint realignment plan | |||||||||||||||||||||||||||||
Other restructuring programs (2) | ( | ||||||||||||||||||||||||||||
| Restructuring charges | $ | $ | $ | ||||||||||||||||||||||||||
10
TELEFLEX INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(Unaudited)
| Three Months Ended March 31, 2019 | |||||||||||||||||||||||||||||||||||||||||
| Termination benefits | Other costs (1) | Total | |||||||||||||||||||||||||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||||||||||||||||||||||||||
| 2019 Footprint realignment plan | $ | $ | $ | ||||||||||||||||||||||||||||||||||||||
| 2018 Footprint realignment plan | |||||||||||||||||||||||||||||||||||||||||
Other restructuring programs (3) | |||||||||||||||||||||||||||||||||||||||||
| Restructuring charges | $ | $ | $ | ||||||||||||||||||||||||||||||||||||||
| Asset impairment charges | |||||||||||||||||||||||||||||||||||||||||
| Restructuring and impairment charges | $ | $ | $ | ||||||||||||||||||||||||||||||||||||||
(1) Other costs include facility closure, contract termination and other exit costs.
(2) Includes program initiated during third quarter of 2019 as well as the 2016 and 2014 Footprint realignment plan.
(3) Includes the Vascular Solutions integration program (initiated in 2017) as well as the 2016 and 2014 Footprint realignment plans.
Note 6 — Inventories
Inventories as of March 29, 2020 and December 31, 2019 consisted of the following:
| March 29, 2020 | December 31, 2019 | ||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||
| Raw materials | $ | $ | |||||||||||||||
| Work-in-process | |||||||||||||||||
| Finished goods | |||||||||||||||||
| Inventories | $ | $ | |||||||||||||||
Note 7 — Goodwill and other intangible assets, net
The following table provides information relating to changes in the carrying amount of goodwill by reportable operating segment for the three months ended March 29, 2020:
| Americas | EMEA | Asia | OEM | Total | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| December 31, 2019 | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Goodwill related to acquisitions | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Currency translation adjustment | ( | ( | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| March 29, 2020 | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
The gross carrying amount of, and accumulated amortization relating to, intangible assets as of March 29, 2020 and December 31, 2019 were as follows:
| Gross Carrying Amount | Accumulated Amortization | ||||||||||||||||||||||||||||||||||||||||
| March 29, 2020 | December 31, 2019 | March 29, 2020 | December 31, 2019 | ||||||||||||||||||||||||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||||||||||||||||||||||||||
| Customer relationships | $ | $ | $ | ( | $ | ( | |||||||||||||||||||||||||||||||||||
| In-process research and development | |||||||||||||||||||||||||||||||||||||||||
| Intellectual property | ( | ( | |||||||||||||||||||||||||||||||||||||||
| Distribution rights | ( | ( | |||||||||||||||||||||||||||||||||||||||
| Trade names | ( | ( | |||||||||||||||||||||||||||||||||||||||
| Non-compete agreements | ( | ( | |||||||||||||||||||||||||||||||||||||||
| $ | $ | $ | ( | $ | ( | ||||||||||||||||||||||||||||||||||||
11
TELEFLEX INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(Unaudited)
Note 8 — Borrowings
Our borrowings at March 29, 2020 and December 31, 2019 were as follows:
| March 29, 2020 | December 31, 2019 | ||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||
| Senior Credit Facility: | |||||||||||||||||
Revolving credit facility, at a rate of | $ | $ | |||||||||||||||
Term loan facility, at a rate of | |||||||||||||||||
Securitization program, at a rate of | |||||||||||||||||
| Less: Unamortized debt issuance costs | ( | ( | |||||||||||||||
| Current borrowings | ( | ( | |||||||||||||||
| Long-term borrowings | $ | $ | |||||||||||||||
On March 30, 2020, we amended our accounts receivable securitization facility to increase the maximum available capacity from $50 million to $75 million.
Note 9 — Financial instruments
Foreign currency forward contracts
We use derivative instruments for risk management purposes. Foreign currency forward contracts designated as cash flow hedges are used to manage foreign currency transaction exposure. Foreign currency forward contracts not designated as hedges for accounting purposes are used to manage exposure related to near term foreign currency denominated monetary assets and liabilities. We enter into the non-designated foreign currency forward contracts for periods consistent with our currency translation exposures, which generally approximate one month. For the three months ended March 29, 2020 we recognized gains related to non-designated foreign currency forward contracts of $1.6 million, and for the three months ended March 31, 2019 we recognized losses related to non-designated foreign currency forward contracts of $3.0 million.
The total notional amount for all open foreign currency forward contracts designated as cash flow hedges as of March 29, 2020 and December 31, 2019 was $130.7 million and $63.4 million, respectively. The total notional amount for all open non-designated foreign currency forward contracts as of March 29, 2020 and December 31, 2019 was $148.6 million and $132.8 million, respectively. All open foreign currency forward contracts as of March 29, 2020 have durations of 12 months or less.
Cross-currency interest rate swaps
During 2019, we entered into cross-currency swap agreements with five different financial institution counterparties to hedge against the effect of variability in the U.S. dollar to euro exchange rate. Under the terms of the cross-currency swap agreements, we have notionally exchanged $250 million at an annual interest rate of 4.8750 % for €219.2 million at an annual interest rate of 2.4595 %. The swap agreements are designed as net investment hedges and expire on March 4, 2024.
During 2018, we entered into cross-currency swap agreements with six different financial institution counterparties to hedge against the effect of variability in the U.S. dollar to euro exchange rate. Under the terms of the cross-currency swap agreements, we have notionally exchanged $500 million at an annual interest rate of 4.625 % for €433.9 million at an annual interest rate of 1.942 %. The swap agreements are designed as net investment hedges and expire on October 4, 2023.
12
TELEFLEX INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(Unaudited)
The swap agreements described above require an exchange of the notional amounts upon expiration or earlier termination of the agreements. We and the counterparties have agreed to effect the exchange through a net settlement.
The cross-currency swaps are marked to market at each reporting date and any changes in fair value are recognized as a component of accumulated other comprehensive income (loss) ("AOCI"). For the three months ended March 29, 2020 and March 31, 2019, we recognized foreign exchange gains of $25.0 million and $6.6 million, respectively, within AOCI related to the cross-currency swaps. For the three months ended March 29, 2020 and March 31, 2019, we recognized $4.9 million and $3.9 million, respectively, in interest benefit related to the cross-currency swaps.
Balance sheet presentation
The following table presents the locations in the condensed consolidated balance sheet and fair value of derivative financial instruments as of March 29, 2020 and December 31, 2019:
| March 29, 2020 | December 31, 2019 | ||||||||||||||||
| Fair Value | |||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||
| Asset derivatives: | |||||||||||||||||
| Designated foreign currency forward contracts | $ | $ | |||||||||||||||
| Non-designated foreign currency forward contracts | |||||||||||||||||
| Cross-currency interest rate swaps | |||||||||||||||||
| Prepaid expenses and other current assets | |||||||||||||||||
| Cross-currency interest rate swaps | |||||||||||||||||
| Other assets | |||||||||||||||||
| Total asset derivatives | $ | $ | |||||||||||||||
| Liability derivatives: | |||||||||||||||||
| Designated foreign currency forward contracts | $ | $ | |||||||||||||||
| Non-designated foreign currency forward contracts | |||||||||||||||||
| Other current liabilities | |||||||||||||||||
| Total liability derivatives | $ | $ | |||||||||||||||
See Note 11 for information on the location and amount of gains and losses attributable to derivatives that were reclassified from AOCI to expense (income), net of tax.
There was no
Trade receivables
In the ordinary course of business, we grant non-interest bearing trade credit to our customers on normal credit terms. In an effort to reduce our credit risk, we (i) establish credit limits for all of our customer relationships, (ii) perform ongoing credit evaluations of our customers’ financial condition, (iii) monitor the payment history and aging of our customers’ receivables, and (iv) monitor open orders against an individual customer’s outstanding receivable balance.
Our allowance for credit losses is maintained for trade accounts receivable based on the expected collectability of accounts receivable, after considering our historical collection experience, the length of time an account is outstanding, the financial position of the customer, information provided by credit rating services in addition to new requirements under the accounting guidance, effective January 1, 2020, that includes the consideration of events or circumstances indicating historic collection rates may not be indicative of future collectability, for example, potential customer liquidity concerns resulting from COVID-19, that may impact the collectability of our receivables as well as our estimate of credit losses expected to be incurred over the life of our receivables. To date, we have not experienced significant payment defaults by, or identified other significant collectability concerns with, our
13
TELEFLEX INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(Unaudited)
Note 10 — Fair value measurement
The following tables provide information regarding our financial assets and liabilities measured at fair value on a recurring basis as of March 29, 2020 and December 31, 2019:
| Total carrying value at March 29, 2020 | Quoted prices in active markets (Level 1) | Significant other observable Inputs (Level 2) | Significant unobservable Inputs (Level 3) | ||||||||||||||||||||||||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||||||||||||||||||||||||||
| Investments in marketable securities | $ | $ | $ | $ | |||||||||||||||||||||||||||||||||||||
| Derivative assets | |||||||||||||||||||||||||||||||||||||||||
| Derivative liabilities | |||||||||||||||||||||||||||||||||||||||||
| Contingent consideration liabilities | |||||||||||||||||||||||||||||||||||||||||
| Total carrying value at December 31, 2019 | Quoted prices in active markets (Level 1) | Significant other observable Inputs (Level 2) | Significant unobservable Inputs (Level 3) | ||||||||||||||||||||||||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||||||||||||||||||||||||||
| Investments in marketable securities | $ | $ | $ | $ | |||||||||||||||||||||||||||||||||||||
| Derivative assets | |||||||||||||||||||||||||||||||||||||||||
| Derivative liabilities | |||||||||||||||||||||||||||||||||||||||||
| Contingent consideration liabilities | |||||||||||||||||||||||||||||||||||||||||
Valuation Techniques
Our financial assets valued based upon Level 1 inputs are comprised of investments in marketable securities held in trust, which are available to satisfy benefit obligations under our benefit plans and other arrangements. The investment assets of the trust are valued using quoted market prices.
Our financial assets and liabilities valued based upon Level 2 inputs are comprised of foreign currency forward contracts and cross-currency interest rate swap agreements. We use foreign currency forwards and cross-currency interest rate swaps to manage foreign currency transaction exposure, as well as exposure to foreign currency denominated monetary assets and liabilities. We measure the fair value of the foreign currency forwards and cross-currency swaps by calculating the amount required to enter into offsetting contracts with similar remaining maturities, based on quoted market prices, and taking into account the creditworthiness of the counterparties.
Our financial liabilities valued based upon Level 3 inputs (inputs that are not observable in the market) are comprised of contingent consideration arrangements pertaining to our acquisitions, which are discussed immediately below.
Contingent consideration
Contingent consideration liabilities, which primarily consist of payment obligations that are contingent upon the achievement of revenue-based goals, but also can be based on other milestones such as regulatory approvals, are remeasured to fair value each reporting period using assumptions including estimated revenues (based on internal operational budgets and long-range strategic plans), discount rates, probability of payment and projected payment dates.
14
TELEFLEX INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(Unaudited)
We determine the fair value of the contingent consideration liabilities related to the NeoTract and Essential Medical acquisitions, which represent most of our contingent consideration liabilities as of March 29, 2020 and December 31, 2019, using a Monte Carlo simulation (which involves a simulation of future revenues during the earn-out period using management's best estimates). Increases in projected revenues, estimated cash flows and probabilities of payment may result in significantly higher fair value measurements; decreases in these items may have the opposite effect. Increases in the discount rates in periods prior to payment may result in significantly lower fair value measurements and decreases in the discount rates may have the opposite effect.
The table below provides additional information regarding the valuation technique and inputs used in determining the fair value of contingent consideration.
| Contingent Consideration Liability | Valuation Technique | Unobservable Input | Range (Weighted average) | |||||||||||||||||
| Milestone-based payments | ||||||||||||||||||||
| Discounted cash flow | Discount rate | |||||||||||||||||||
| Projected year of payment | 2021 - 2023 | |||||||||||||||||||
| Revenue-based payments | ||||||||||||||||||||
| Monte Carlo simulation | Revenue volatility | |||||||||||||||||||
| Risk free rate | Cost of debt structure | |||||||||||||||||||
| Projected year of payment | 2020 - 2022 | |||||||||||||||||||
| Discounted cash flow | Discount rate | |||||||||||||||||||
| Projected year of payment | 2020 - 2029 | |||||||||||||||||||
The following table provides information regarding changes in the contingent consideration liabilities during the three months ended March 29, 2020:
| Contingent consideration | |||||
| (Dollars in thousands) | |||||
Balance - December 31, 2019 | $ | ||||
Payments (1) | ( | ||||
Revaluations (2) | ( | ||||
Translation adjustment | ( | ||||
Balance - March 29, 2020 | $ | ||||
(1) Consists mainly of a $140.6 million payment associated with our acquisition of NeoTract, Inc. resulting from the achievement of a revenue-based goal for the period from January 1, 2019 to December 31, 2019.
(2) The decrease, which is included within selling, general and administrative expenses, is mainly due to adverse financial projections resulting from the COVID-19 pandemic.
Note 11 — Shareholders’ equity
Basic earnings per share is computed by dividing net income by the weighted average number of common shares outstanding during the period. Diluted earnings per share is computed in the same manner except that the weighted average number of shares is increased to include dilutive securities. The following table provides a reconciliation of basic to diluted weighted average number of common shares outstanding:
| Three Months Ended | |||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||
| (Shares in thousands) | |||||||||||||||||
| Basic | |||||||||||||||||
| Dilutive effect of share-based awards | |||||||||||||||||
| Diluted | |||||||||||||||||
The weighted average number of shares that were antidilutive and therefore excluded from the calculation of earnings per share were 0.1
15
TELEFLEX INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(Unaudited)
The following tables provide information relating to the changes in accumulated other comprehensive loss, net of tax, for the three months ended March 29, 2020 and March 31, 2019:
| Cash Flow Hedges | Pension and Other Postretirement Benefit Plans | Foreign Currency Translation Adjustment | Accumulated Other Comprehensive (Loss) Income | ||||||||||||||||||||||||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||||||||||||||||||||||||||
| Balance as of December 31, 2019 | $ | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||||||||||||||||
| Other comprehensive (loss) income before reclassifications | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||
| Amounts reclassified from accumulated other comprehensive income | ( | ||||||||||||||||||||||||||||||||||||||||
| Net current-period other comprehensive (loss) income | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||
| Balance as of March 29, 2020 | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||||||||||||||||||||||||||
| Cash Flow Hedges | Pension and Other Postretirement Benefit Plans | Foreign Currency Translation Adjustment | Accumulated Other Comprehensive (Loss) Income | ||||||||||||||||||||||||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||||||||||||||||||||||||||
| Balance as of December 31, 2018 | $ | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||||||||||||||||
| Other comprehensive (loss) income before reclassifications | ( | ( | ( | ( | |||||||||||||||||||||||||||||||||||||
| Amounts reclassified from accumulated other comprehensive loss | ( | ||||||||||||||||||||||||||||||||||||||||
| Net current-period other comprehensive (loss) income | ( | ( | |||||||||||||||||||||||||||||||||||||||
| Balance as of March 31, 2019 | $ | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||||||||||||||||
The following table provides information relating to the location in the statements of operations and amount of reclassifications of losses/(gains) in accumulated other comprehensive (loss) income into expense/(income), net of tax, for the three months ended March 29, 2020 and March 31, 2019:
| Three Months Ended | ||||||||||||||||||||
| March 29, 2020 | March 31, 2019 | |||||||||||||||||||
| (Dollars in thousands) | ||||||||||||||||||||
| (Gains) losses on foreign exchange contracts: | ||||||||||||||||||||
| Cost of goods sold | $ | ( | $ | ( | ||||||||||||||||
| Total before tax | ( | ( | ||||||||||||||||||
| Taxes | ||||||||||||||||||||
| Net of tax | $ | ( | $ | ( | ||||||||||||||||
Amortization of pension and other postretirement benefit items (1): | ||||||||||||||||||||
| Actuarial losses | $ | $ | ||||||||||||||||||
| Prior-service costs | ||||||||||||||||||||
| Total before tax | ||||||||||||||||||||
| Tax benefit | ( | ( | ||||||||||||||||||
| Net of tax | $ | $ | ||||||||||||||||||
| Total reclassifications, net of tax | $ | $ | ||||||||||||||||||
(1) These accumulated other comprehensive (loss) income components are included in the computation of net benefit expense for pension and other postretirement benefit plans.
16
TELEFLEX INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(Unaudited)
Note 12 — Taxes on income from continuing operations
| Three Months Ended | |||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||
| Effective income tax rate | |||||||||||||||||
The effective income tax rate for the three months ended March 29, 2020 and March 31, 2019 was 7.8 % and 20.7 %, respectively. The effective income tax rate for the three months ended March 29, 2020, as compared to the prior year period, reflects a non-taxable contingent consideration adjustment recognized in connection with a decrease in the fair value of our contingent consideration liabilities. The effective income tax rate for the three months ended March 31, 2019 reflects significant non-deductible termination benefits incurred in connection with the 2019 Footprint realignment plan. In addition, the effective tax rates for both the three months ended March 29, 2020 and March 31, 2019 reflect a net excess tax benefit related to share-based compensation.
In April 2020, we became aware of a new interpretation of a non-U.S. tax law that could apply to certain of our previous and current intercompany transactions. We are evaluating this new information and the effect, if any, on our tax positions. The amount of any potential impact on our financial statements is not yet estimable at this time but could be material to our results of operations. We do not expect any additional liability to result in a material impact to our liquidity or overall financial position.
Note 13 — Commitments and contingent liabilities
Environmental: We are subject to contingencies as a result of environmental laws and regulations that in the future may require us to take further action to correct the effects on the environment of prior disposal practices or releases of chemical or petroleum substances by us or other parties. Much of this liability results from the U.S. Comprehensive Environmental Response, Compensation and Liability Act, often referred to as Superfund, the U.S. Resource Conservation and Recovery Act and similar state laws. These laws require us to undertake certain investigative and remedial activities at sites where we conduct or once conducted operations or at sites where Company-generated waste was disposed.
Remediation activities vary substantially in duration and cost from site to site. These activities, and their associated costs, depend on the mix of unique site characteristics, evolving remediation technologies, the regulatory agencies involved and their enforcement policies, as well as the presence or absence of other potentially responsible parties. At March 29, 2020, we have recorded $0.7 million and $6.0 million in accrued liabilities and other liabilities, respectively, relating to these matters. Considerable uncertainty exists with respect to these liabilities and, if adverse changes in circumstances occur, the potential liability may exceed the amount accrued as of March 29, 2020. The time frame over which the accrued amounts may be paid out, based on past history, is estimated to be 10 -15 years.
Litigation: We are a party to various lawsuits and claims arising in the normal course of business. These lawsuits and claims include actions involving product liability, product warranty, commercial disputes, intellectual property, contract, employment, environmental and other matters. As of March 29, 2020, we have recorded accrued liabilities of $0.3 million in connection with such contingencies, representing our best estimate of the cost within the range of estimated possible losses that will be incurred to resolve these matters.
Based on information currently available, advice of counsel, established reserves and other resources, we do not believe that the outcome of any outstanding litigation and claims is likely to be, individually or in the aggregate, material to our business, financial condition, results of operations or liquidity. However, in the event of unexpected further developments, it is possible that the ultimate resolution of these matters, or other similar matters, if unfavorable, may be materially adverse to our business, financial condition, results of operations or liquidity. Legal costs such as outside counsel fees and expenses are charged to selling, general and administrative expenses in the period incurred.
Tax audits and examinations: We are routinely subject to tax examinations by various tax authorities. As of March 29, 2020, the most significant tax examination in process is in Germany. We may establish reserves with
17
TELEFLEX INCORPORATED
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(Unaudited)
Note 14 — Segment information
The following tables present our segment results for the three months ended March 29, 2020 and March 31, 2019:
| Three Months Ended | |||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||
| Americas | $ | $ | |||||||||||||||
| EMEA | |||||||||||||||||
| Asia | |||||||||||||||||
| OEM | |||||||||||||||||
| Net revenues | $ | $ | |||||||||||||||
| Three Months Ended | |||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||
| (Dollars in thousands) | |||||||||||||||||
| Americas | $ | $ | |||||||||||||||
| EMEA | |||||||||||||||||
| Asia | |||||||||||||||||
| OEM | |||||||||||||||||
Total segment operating profit (1) | |||||||||||||||||
Unallocated expenses (2) | ( | ( | |||||||||||||||
| Income from continuing operations before interest and taxes | $ | $ | |||||||||||||||
(1)Segment operating profit includes segment net revenues from external customers reduced by the segment's standard cost of goods sold, adjusted for fixed manufacturing cost absorption variances, selling, general and administrative expenses, research and development expenses and an allocation of corporate expenses. Corporate expenses are allocated among the segments in proportion to the respective amounts of one of several items (such as net revenues, numbers of employees, and amount of time spent), depending on the category of expense involved.
(2)Unallocated expenses primarily include manufacturing variances other than fixed manufacturing cost absorption variances, restructuring charges and gain on sale of assets.
18
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
Overview
Teleflex Incorporated (“we,” “us,” “our" and “Teleflex”) is a global provider of medical technology products focused on enhancing clinical benefits, improving patient and provider safety and reducing total procedural costs. We primarily design, develop, manufacture and supply single-use medical devices used by hospitals and healthcare providers for common diagnostic and therapeutic procedures in critical care and surgical applications. We market and sell our products worldwide through a combination of our direct sales force and distributors. Because our products are used in numerous markets and for a variety of procedures, we are not dependent upon any one end-market or procedure. We are focused on achieving consistent, sustainable and profitable growth by increasing our market share and improving our operating efficiencies.
We evaluate our portfolio of products and businesses on an ongoing basis to ensure alignment with our overall objectives. Based on our evaluation, we may identify opportunities to divest businesses and product lines that do not meet our objectives. In addition, we may seek to optimize utilization of our facilities through restructuring initiatives designed to further improve our cost structure and enhance our competitive position. We also may continue to explore opportunities to expand the size of our business and improve operating margins through a combination of acquisitions and distributor to direct sales conversions, which generally involve our elimination of a distributor from the sales channel, either by acquiring the distributor or terminating the distributor relationship (in some instances, particularly in Asia, the conversions involve our acquisition or termination of a master distributor and the continued sale of our products through sub-distributors or through new distributors). Distributor to direct sales conversions are designed to facilitate improved product pricing and more direct access to the end users of our products within the sales channel.
COVID-19 pandemic
We continue to experience the effects of the global pandemic caused by the COVID-19 novel strain of coronavirus. Among other things, the response to the COVID-19 pandemic has had the effect of reducing the number of elective procedures being carried out, which has impacted and continues to impact some of our product categories, including our interventional urology, interventional and surgical products, which have experienced and continue to experience decreased demand. For the three months ended March 29, 2020, we experienced increased demand in our respiratory and vascular access product categories. We continue to experience increased demand primarily in our respiratory product category. From a segment perspective, our Americas segment was negatively impacted, primarily due to the reduction in elective procedures, and our EMEA segment benefited due to increased demand for our products used in the treatment of patients with COVID-19. Conversely, our Asia segment was negatively impacted, in part, due to government mandated shut-downs in certain countries. The COVID-19 pandemic is impacting other elements of our operations, as well as our employees, contractors, suppliers, customers and other business partners. To date, we have not experienced significant disruptions in the global supply chain for our products that are in high demand, but delivery times have lengthened.
In addition, there have been and continues to be impacts on our cost structure resulting from measures that we and other businesses are taking or will take, in accordance with governmental requirements and otherwise, to protect our employees and business partners. We continue to assess the impact on our business (including our employees, customers and suppliers) of travel restrictions, border closures and quarantines as they affect our various sites, including our 35 manufacturing sites located in various countries. In most jurisdictions, our manufacturing and distribution sites remain open because we are considered an essential business. During the three months ended March 29, 2020, we experienced, and we continue to experience, some inefficiencies in our manufacturing operations due to government restrictions placed on facilities in certain locations primarily in Asia. Additionally, we have experienced and continue to experience a higher than normal level of absenteeism across our global manufacturing sites. From an operating expense perspective, we have experienced and continue to experience net decreases in selling, general and administrative expenses as a result of the COVID-19 pandemic due to cost mitigation efforts implemented to control discretionary spending such as certain employee-related costs as well as travel and related expenses. Notwithstanding the above described impacts of the COVID-19 pandemic, the crisis did not have a material adverse effect on our results of operations for the three months ended March 29, 2020. Overall, we believe that the COVID-19 pandemic will continue to negatively affect our revenues and operations, at least over the near-term, and because of the dynamic nature of the crisis, we cannot accurately predict the extent or duration of the impacts of the COVID-19 pandemic.
19
Results of Operations
As used in this discussion, "new products" are products for which commercial sales have commenced within the past 36 months, and “existing products” are products for which commercial sales commenced more than 36 months ago. Discussion of results of operations items that reference the effect of one or more acquired and/or divested businesses or assets (except as noted below with respect to acquired distributors) generally reflects the impact of the acquisitions and/or divestitures within the first 12 months following the date of the acquisition and/or divestiture. In addition to increases and decreases in the per unit selling prices of our products to our customers, our discussion of the impact of product price increases and decreases also reflects the impact on the pricing of our products resulting from the elimination of the distributor, either through acquisition or termination of the distributor, from the sales channel.
Certain financial information is presented on a rounded basis, which may cause minor differences.
Net revenues
| Three Months Ended | |||||||||||||||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||||||||||||||
| (Dollars in millions) | |||||||||||||||||||||||||||||
| Net revenues | $ | 630.6 | $ | 613.6 | |||||||||||||||||||||||||
Net revenues for the three months ended March 29, 2020 increased $17.0 million, or 2.8%, compared to the prior year period. The increase was primarily attributable to a $15.7 million increase in sales volumes of existing products, and to a lesser extent, an increase in new product sales and net revenues generated by the acquisition of IWG High Performance Conductors, Inc. (HPC). These increases were partially offset by unfavorable fluctuations in foreign currency exchange rates of $7.4 million and a decrease in revenue caused by the COVID-19 pandemic.
Gross profit
| Three Months Ended | |||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||
| (Dollars in millions) | |||||||||||||||||
| Gross profit | $ | 333.6 | $ | 324.0 | |||||||||||||
| Percentage of sales | 52.9 | % | 52.8 | % | |||||||||||||
Gross margin for the three months ended March 29, 2020 increased 10 basis points, or 0.2%, compared to the prior year period. The increase in gross margin was primarily attributable to benefits from cost improvement initiatives and the impact of favorable fluctuations in foreign currency exchange rates. These increases were largely offset by the unfavorable impacts of the COVID-19 pandemic and the adverse impact of the step-up in carrying value of inventory recognized in connection with our HPC acquisition.
Selling, general and administrative
| Three Months Ended | |||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||
| (Dollars in millions) | |||||||||||||||||
| Selling, general and administrative | $ | 147.8 | $ | 206.9 | |||||||||||||
| Percentage of sales | 23.4 | % | 33.7 | % | |||||||||||||
Selling, general and administrative expenses for the three months ended March 29, 2020 decreased $59.1 million compared to the prior year period. The decrease was primarily attributable to a $59.5 million reduction in the estimated fair value of our contingent consideration liabilities, which largely relate to revenue-based milestone payments, due to adverse financial projections resulting from the COVID-19 pandemic. Additionally, for the three months ended March 29, 2020 there were net decreases to selling, general and administrative expenses resulting from the COVID-19 pandemic, which were largely offset by increases in normal operating expenses inclusive of selling expenses.
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Research and development
| Three Months Ended | |||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||
| (Dollars in millions) | |||||||||||||||||
| Research and development | $ | 27.4 | $ | 27.2 | |||||||||||||
| Percentage of sales | 4.3 | % | 4.4 | % | |||||||||||||
The increase in research and development expenses for the three months ended March 29, 2020 compared to the prior year period was primarily attributable to European Union Medical Device Regulation ("EU MDR") related costs partially offset by lower project spend across several of our product portfolios.
Restructuring and impairment charges
Anticipated charges and pre-tax savings related to restructuring programs and other similar cost savings initiatives
We have ongoing restructuring programs primarily related to the consolidation of our manufacturing operations (referred to as our 2019, 2018 and 2014 Footprint realignment plans). We also have similar ongoing activities to relocate certain manufacturing operations within our OEM segment (the "OEM initiative") that do not meet the criteria for a restructuring program under applicable accounting guidance; nevertheless, the activities should result in cost savings (we expect only minimal costs to be incurred in connection with the OEM initiative). With respect to our currently ongoing restructuring programs and the OEM initiative, the table below summarizes charges incurred or estimated to be incurred and estimated annual pre-tax savings to be realized as follows: (1) with respect to charges (a) the estimated total charges that will have been incurred once the restructuring programs and OEM initiative are completed; (b) the charges incurred through December 31, 2019; and (c) the estimated charges to be incurred from January 1, 2020 through the last anticipated completion date of the restructuring programs and OEM initiative, December 31, 2026 and (2) with respect to estimated annual pre-tax savings, (a) the estimated total annual pre-tax savings to be realized once the restructuring programs and OEM initiative are completed; (b) the estimated annual pre-tax savings realized based on the progress of the restructuring programs and OEM initiative through December 31, 2019; and (c) the estimated additional annual pre-tax savings to be realized from January 1, 2020 through the last anticipated completion date of the restructuring programs and the OEM initiative, December 31, 2026.
Estimated charges and pre-tax savings are subject to change based on, among other things, the nature and timing of restructuring activities and similar activities, changes in the scope of restructuring programs and the OEM initiative, unanticipated expenditures and other developments including the uncertainties created by the COVID-19 pandemic, the effect of additional acquisitions or dispositions, the failure to realize anticipated savings from a supply contract related to a component included in certain kits sold by our Americas segment and other factors that were not reflected in the assumptions made by management in previously estimating restructuring and restructuring related charges and estimated pre-tax savings. Moreover, estimated pre-tax savings constituting efficiencies with respect to increased costs that otherwise would have resulted from business acquisitions involve, among other things, assumptions regarding the cost structure and integration of businesses that previously were not administered by our management, which are subject to a particularly high degree of risk and uncertainty. It is likely that estimates of charges and pre-tax savings will change from time to time, and the table below reflects changes from amounts previously estimated. In addition, the table below does not include estimated charges and pre-tax savings related to substantially completed programs. Additional details, including estimated charges expected to be incurred in connection with our restructuring programs, are described in Note 5 to the condensed consolidated financial statements included in this report.
Pre-tax savings also can be affected by increases or decreases in sales volumes generated by the businesses subject to the consolidation of manufacturing operations; such variations in revenues can increase or decrease pre-tax savings generated by the consolidation of manufacturing operations. For example, an increase in sales volumes generated by the affected businesses, although likely increasing manufacturing costs, may generate additional savings with respect to costs that otherwise would have been incurred if the manufacturing operations were not consolidated.
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| Ongoing restructuring programs and other similar cost savings initiatives | |||||||||||||||||||||||||||||
| Estimated Total | Actual results through December 31, 2019 | Estimated remaining from January 1, 2020 through December 31, 2026 | |||||||||||||||||||||||||||
| (Dollars in millions) | |||||||||||||||||||||||||||||
| Restructuring charges | $95 - 114 | $83 | $12 - $31 | ||||||||||||||||||||||||||
Restructuring related charges (1) | 110 - 141 | 46 | 64 - 95 | ||||||||||||||||||||||||||
| Total charges | $205 - $255 | $129 | $76 - 126 | ||||||||||||||||||||||||||
| OEM initiative annual pre-tax savings | $6 - $7 | $1 | $5 - $6 | ||||||||||||||||||||||||||
Pre-tax savings (2) | 63 - 73 | 25 | 38 - 48 | ||||||||||||||||||||||||||
| Total annual pre-tax savings | $69 - $80 | $26 | $43 - $54 | ||||||||||||||||||||||||||
(1)Restructuring related charges represent costs that are directly related to restructuring programs and principally constitute costs to transfer manufacturing operations to existing lower-cost locations, project management costs and accelerated depreciation, as well as a charge that is expected to be imposed by a taxing authority as a result of our exit from facilities in the authority's jurisdiction. Most of these charges (other than the tax charge) are expected to be recognized as cost of goods sold.
(2)Substantially all of the pre-tax savings are expected to result in reductions to cost of goods sold.
Restructuring and impairment charges incurred
| Three Months Ended | |||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||
| (Dollars in millions) | |||||||||||||||||
| Restructuring and impairment charges | $ | 1.3 | $ | 17.4 | |||||||||||||
Restructuring and impairment charges for the three months ended March 29, 2020 and March 31, 2019 primarily consisted of termination benefits related to our 2019 Footprint realignment plan.
Interest expense
| Three Months Ended | |||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||
| (Dollars in millions) | |||||||||||||||||
| Interest expense | $ | 15.4 | $ | 22.7 | |||||||||||||
| Average interest rate on debt | 2.7 | % | 3.9 | % | |||||||||||||
The decrease in interest expense for the three months ended March 29, 2020 compared to the prior year period was primarily due to a lower average interest rate resulting from decreases in interest rates associated with our variable interest rate debt instruments and as well as our cross-currency swap agreement that we executed in the latter part of the first quarter of 2019.
Taxes on income from continuing operations
| Three Months Ended | |||||||||||||||||
| March 29, 2020 | March 31, 2019 | ||||||||||||||||
| Effective income tax rate | 7.8 | % | 20.7 | % | |||||||||||||
The effective income tax rate for the three months ended March 29, 2020 was 7.8%, and 20.7% for the three months ended March 31, 2019, respectively. The effective income tax rate for the three months ended March 29, 2020, as compared to the prior year period, reflects a non-taxable contingent consideration adjustment recognized in connection with a decrease in the fair value of our contingent consideration liabilities. The effective income tax rate for the three months ended March 31, 2019 reflects significant non-deductible termination benefits incurred in connection with the 2019 Footprint realignment plan. In addition, the effective tax rates for both the three months ended March 29, 2020 and March 31, 2019 reflect a net excess tax benefit related to share-based compensation.
In April 2020, we became aware of a new interpretation of a non-U.S. tax law that could apply to certain of our previous and current intercompany transactions. We are evaluating this new information and the effect, if any, on our tax positions. The amount of any potential impact on our financial statements is not yet estimable at this time but
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could be material to our results of operations. We do not expect any additional liability to result in a material impact to our liquidity or overall financial position.
Segment Financial Information
| Segment net revenues | |||||||||||||||||||||||||||||
| Three Months Ended | |||||||||||||||||||||||||||||
| March 29, 2020 | March 31, 2019 | % Increase/ (Decrease) | |||||||||||||||||||||||||||
| (Dollars in millions) | |||||||||||||||||||||||||||||
| Americas | $ | 358.0 | $ | 344.0 | 4.1 | ||||||||||||||||||||||||
| EMEA | 156.1 | 154.6 | 1.0 | ||||||||||||||||||||||||||
| Asia | 53.1 | 60.8 | (12.6) | ||||||||||||||||||||||||||
| OEM | 63.4 | 54.2 | 16.9 | ||||||||||||||||||||||||||
| Segment net revenues | $ | 630.6 | $ | 613.6 | 2.8 | ||||||||||||||||||||||||
| Segment operating profit | |||||||||||||||||||||||||||||
| Three Months Ended | |||||||||||||||||||||||||||||
| March 29, 2020 | March 31, 2019 | % Increase/ (Decrease) | |||||||||||||||||||||||||||
| (Dollars in millions) | |||||||||||||||||||||||||||||
| Americas | $ | 141.0 | $ | 65.6 | 114.9 | ||||||||||||||||||||||||
| EMEA | 20.4 | 27.0 | (24.4) | ||||||||||||||||||||||||||
| Asia | 10.2 | 10.0 | 2.5 | ||||||||||||||||||||||||||
| OEM | 15.1 | 13.3 | 13.3 | ||||||||||||||||||||||||||
Segment operating profit (1) | $ | 186.7 | $ | 115.9 | 61.1 | ||||||||||||||||||||||||
(1)See Note 14 to our condensed consolidated financial statements included in this report for a reconciliation of segment operating profit to our condensed consolidated income from continuing operations before interest, loss on extinguishment of debt and taxes.
Comparison of the three months ended March 29, 2020 and March 31, 2019
Americas
Americas net revenues for the three months ended March 29, 2020 increased $14.0 million, or 4.1%, compared to the prior year period. The increase was primarily attributable to a $12.7 million increase in sales volume of existing products, mostly in interventional urology, as well as an increase in new product sales, which were partially offset by a decrease in revenues caused by the COVID-19 pandemic.
Americas operating profit for the three months ended March 29, 2020 increased $75.4 million, or 114.9%, compared to the prior year period. The increase was primarily attributable to a decrease in the fair value of our contingent consideration liabilities and, to a lesser extent, an increase in gross profit resulting from higher sales.
EMEA
EMEA net revenues for the three months ended March 29, 2020 increased $1.5 million, or 1.0%, compared to the prior year period. The increase was primarily attributable to a $6.1 million increase in sales volumes of existing products, inclusive of a benefit from the COVID-19, partially offset by unfavorable fluctuations in foreign currency exchange rates of $4.2 million.
EMEA operating profit for the three months ended March 29, 2020 decreased $6.6 million, or 24.4%, compared to the prior year period. The decrease was primarily attributable to unfavorable fluctuations in foreign currency exchange rates and an increase in research and development expenses inclusive of higher EU MDR related costs. The decreases in operating profit were partially offset by lower general and administrative expenses.
Asia
Asia net revenues for the three months ended March 29, 2020 decreased $7.7 million, or 12.6%, compared to the prior year period. The decrease was primarily attributable to a $7.3 million decrease in sales volumes of existing products, inclusive of the negative impact from the COVID-19 pandemic, and unfavorable fluctuations in foreign currency exchange rates.
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Asia operating profit for the three months ended March 29, 2020 increased $0.2 million, or 2.5%, compared to the prior year period. The increase was primarily attributable to lower general and administrative expenses partially offset by the impact of unfavorable fluctuations in foreign currency exchange rates and a decrease in gross profit resulting from lower sales.
OEM
OEM net revenues for the three months ended March 29, 2020 increased $9.2 million, or 16.9%, compared to the prior year period. The increase was primarily attributable to net revenues of $5.0 million generated from our acquisition of HPC and a $4.2 million increase in sales volumes of existing products.
OEM operating profit for the three months ended March 29, 2020 increased $1.8 million, or 13.3% compared to the prior year period. The increase was primarily attributable to an increase in gross profit resulting from higher sales partially offset by expenses incurred in connection with the HPC acquisition.
Liquidity and Capital Resources
While the potential economic impact resulting from the COVID-19 pandemic and the duration of the pandemic's impact are difficult to assess or predict, the impact of the COVID-19 pandemic on the global financial markets may reduce our ability to access capital, which could negatively impact our short-term and long-term liquidity. In consideration of the significant uncertainty created by the COVID-19 pandemic, we are continuing to assess our liquidity and anticipated capital requirements. Notwithstanding the significant uncertainty created by the COVID-19 pandemic, we believe our cash flow from operations, available cash and cash equivalents and borrowings under our revolving credit facility will enable us to fund our operating requirements, capital expenditures and debt obligations for the next 12 months and the foreseeable future. We have net cash provided by United States based operating activities as well as non-United States sources of cash available to help fund our debt service requirements in the United States. We manage our worldwide cash requirements by monitoring the funds available among our subsidiaries and determining the extent to which we can access those funds on a cost effective basis.
In consideration of the COVID-19 pandemic, we are closely monitoring our receivables and payables. To date, we have not experienced significant payment defaults by, or identified other collectability concerns with, our customers, and we have sufficient lending commitments in place to enable us to fund our anticipated additional operating needs.
Cash Flows
Net cash used in operating activities from continuing operations was $11.5 million for the three months ended March 29, 2020 as compared to net cash provided by operating activities of $60.2 million for the three months ended March 31, 2019. The $71.7 million decrease was primarily attributable to an increase in contingent consideration payments. Additionally, for the three months ended March 29, 2020, we made a $10.0 million pension contribution and had an increase in payroll and benefit related payments as compared to the prior year period.
Net cash used in investing activities from continuing operations was $284.4 million for the three months ended March 29, 2020, which included a $260.0 million payment for the acquisition of HPC as well as capital expenditures of $19.7 million.
Net cash provided by financing activities from continuing operations was $405.3 million for the three months ended March 29, 2020, which reflected a net increase in borrowings of $485.0 million. The cash received from the increase in borrowings was utilized to fund the $260.0 million acquisition of HPC; to increase our available cash on hand by $150.0 million to strengthen our liquidity as a precautionary measure in response to the COVID-19 pandemic; and to help fund the NeoTract contingent consideration payment. Net cash used in financing activities for the three months ended March 29, 2020 also reflects contingent consideration payments of $60.9 million and dividend payments of $15.8 million.
Borrowings
On March 30, 2020, we increased our borrowing capacity related to our accounts receivable securitization facility from $50 million to $75 million.
The 4.875% Senior Notes due 2026 (the "2026 Notes") contain covenants that, among other things and subject to certain exceptions, limit or restrict our ability, and the ability of our subsidiaries, to incur additional debt or
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issue preferred stock or other disqualified stock, create liens, merge, consolidate, or dispose of certain assets, pay dividends, make investments or make other restricted payments, or enter into transactions with our affiliates. The indenture governing our 4.625% Senior Notes due 2027 (the “2027 Notes”) contains covenants that, among other things and subject to certain exceptions, limit or restrict our ability, and the ability of our subsidiaries, to create liens; consolidate, merge or dispose of certain assets; and enter into sale leaseback transactions.
As of March 29, 2020, we were in compliance with these requirements. The obligations under the Credit Agreement, the 2026 Notes and the 2027 Notes are guaranteed (subject to certain exceptions) by substantially all of our material domestic subsidiaries, and the obligations under the Credit Agreement are (subject to certain exceptions and limitations) secured by a lien on substantially all of the assets owned by us and each guarantor.
Summarized Financial Information – Obligor Group
Our $400 million principal amount of 4.875% Senior Notes due 2026 (the “2026 Notes”) and $500 million principal amount of 4.625% Senior Notes due 2027 (the “2027 Notes," and together with the 2026 Notes, the "Senior Notes") are issued by Teleflex Incorporated (the “Parent Company”), and payment of the Parent Company's obligations under the Senior Notes is guaranteed, jointly and severally, by an enumerated group of the Parent Company’s subsidiaries (each, a “Guarantor Subsidiary” and collectively, the “Guarantor Subsidiaries”). The guarantees are full and unconditional, subject to certain customary release provisions. Each Guarantor Subsidiary is directly or indirectly 100% owned by the Parent Company. Summarized financial information for the Parent and Guarantor Subsidiaries (collectively, the “Obligor Group”) as of March 29, 2020 and December 31, 2019 and for the three months ended March 29, 2020 is as follows:
| Three Months Ended | ||||||||||||||||||||||||||||||||||||||||||||||||||
| March 29, 2020 | ||||||||||||||||||||||||||||||||||||||||||||||||||
| (Dollars in millions) | ||||||||||||||||||||||||||||||||||||||||||||||||||
| Obligor Group | Intercompany | Obligor Group (excluding Intercompany) | ||||||||||||||||||||||||||||||||||||||||||||||||
| Net revenue | $ | 444.2 | $ | 55.5 | $ | 388.7 | ||||||||||||||||||||||||||||||||||||||||||||
| Cost of goods sold | 260.7 | 73.5 | 187.2 | |||||||||||||||||||||||||||||||||||||||||||||||
| Gross profit | 183.5 | (18.0) | 201.5 | |||||||||||||||||||||||||||||||||||||||||||||||
| Income from continuing operations | 81.9 | 2.3 | 79.6 | |||||||||||||||||||||||||||||||||||||||||||||||
| Net income | 81.9 | 2.3 | 79.6 | |||||||||||||||||||||||||||||||||||||||||||||||
| March 29, 2020 | December 31, 2019 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| (Dollars in millions) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Obligor Group | Intercompany | Obligor Group (excluding Intercompany) | Obligor Group | Intercompany | Obligor Group (excluding Intercompany) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Total current assets | $ | 864.2 | $ | 63.9 | $ | 800.3 | $ | 735.8 | $ | 51.8 | $ | 684.0 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Total assets | 5,116.3 | 1,389.0 | 3,727.3 | 4,847.9 | 1,237.7 | 3,610.2 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Total current liabilities | 707.8 | 515.4 | 192.4 | 852.5 | 500.8 | 351.7 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Total liabilities | 3,963.5 | 797.9 | 3,165.6 | 3,659.5 | 752.4 | 2,907.1 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
The same accounting policies as described in Note 1 to the consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2019 are used by the Parent Company and each of its subsidiaries in connection with the summarized financial information presented above. The Intercompany column in the table above represents transactions between and among the Obligor Group and non-guarantor subsidiaries (i.e. those subsidiaries of the Parent Company that have not guaranteed payment of the Senior Notes). Obligor investments in non-guarantor subsidiaries and any related activity are excluded from the financial information presented above.
Critical Accounting Estimates
The preparation of consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates and assumptions.
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In our Annual Report on Form 10-K for the year ended December 31, 2019, we provided disclosure regarding our critical accounting estimates, which are reflective of significant judgments and uncertainties, are important to the presentation of our financial condition and results of operations and could potentially result in materially different results under different assumptions and conditions.
New Accounting Standards
See Note 2 to the condensed consolidated financial statements included in this report for a discussion of recently issued accounting guidance, including estimated effects, if any, of adoption of the guidance on our financial statements.
Forward-Looking Statements
All statements made in this Quarterly Report on Form 10-Q, other than statements of historical fact, are forward-looking statements. The words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “may,” “plan,” “will,” “would,” “should,” “guidance,” “potential,” “continue,” “project,” “forecast,” “confident,” “prospects” and similar expressions typically are used to identify forward-looking statements. Forward-looking statements are based on the then-current expectations, beliefs, assumptions, estimates and forecasts about our business and the industry and markets in which we operate. These statements are not guarantees of future performance and are subject to risks and uncertainties, which are difficult to predict. Therefore, actual outcomes and results may differ materially from those expressed or implied by these forward-looking statements due to a number of factors, including the adverse economic conditions associated with the COVID-19 global health pandemic and the associated financial crisis, stay-at-home and other orders, which could cause material delays and cancellations of elective procedures, curtailed or delayed spending by customers and result in disruptions to our supply chain, closure of our facilities, delays in product launches or diversion of management and other resources to respond to the COVID-19 pandemic; the impact of global and regional economic and credit market conditions on healthcare spending; the risk that the COVID-19 pandemic disrupts local economies and causes economies to enter prolonged recessions; changes in business relationships with and purchases by or from major customers or suppliers; delays or cancellations of shipments; demand for and market acceptance of new and existing products; our inability to provide products to our customers, which may be due to, among other things, events that impact key distributors, suppliers and vendors that sterilize our products; our inability to integrate acquired businesses into our operations, realize planned synergies and operate such businesses profitably in accordance with our expectations; our inability to effectively execute our restructuring plans and programs; our inability to realize anticipated savings from restructuring plans and programs; the impact of enacted healthcare reform legislation and proposals to amend, replace or repeal the legislation; changes in Medicare, Medicaid and third party coverage and reimbursements; the impact of tax legislation and related regulations; competitive market conditions and resulting effects on revenues and pricing; increases in raw material costs that cannot be recovered in product pricing; global economic factors, including currency exchange rates, interest rates, trade disputes and sovereign debt issues; difficulties in entering new markets; and general economic conditions. For a further discussion of the risks relating to our business, see Item 1A, "Risk Factors," in our Annual Report on Form 10-K for the year ended December 31, 2019. We expressly disclaim any obligation to update these forward-looking statements, except as otherwise specifically stated by us or as required by law or regulation.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
There have been no material changes to the information set forth in Part II, Item 7A of our Annual Report on Form 10-K for the year ended December 31, 2019.
Item 4. Controls and Procedures
(a) Evaluation of Disclosure Controls and Procedures
Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures as of the end of the period covered by this report. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures as of the end of the period covered by this report are functioning effectively to provide reasonable assurance that the information required to be disclosed by us in reports filed under the Securities Exchange Act of 1934 is (i) recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and (ii) accumulated and communicated to our management, including the Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding disclosure. A controls system cannot provide
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absolute assurance that the objectives of the controls system are met, and no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within a company have been detected.
(b) Change in Internal Control over Financial Reporting
No change in our internal control over financial reporting occurred during our most recently completed fiscal quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
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PART II — OTHER INFORMATION
Item 1. Legal Proceedings
We are party to various lawsuits and claims arising in the normal course of business. These lawsuits and claims include actions involving product liability and product warranty, commercial disputes, intellectual property, contract, employment, environmental and other matters. As of March 29, 2020 and December 31, 2019, we have accrued liabilities of approximately $0.3 million and $0.4 million, respectively, in connection with these matters, representing our best estimate of the cost within the range of estimated possible loss that will be incurred to resolve these matters. Based on information currently available, advice of counsel, established reserves and other resources, we do not believe that the outcome of any outstanding lawsuits or claims is likely to be, individually or in the aggregate, material to our business, financial condition, results of operations or liquidity. However, in the event of unexpected further developments, it is possible that the ultimate resolution of these matters, or other similar matters, if unfavorable, may be materially adverse to our business, financial condition, results of operations or liquidity.
Item 1A. Risk Factors
See the information set forth in Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2019. There have been no significant changes in risk factors for the quarter ended March 29, 2020 except as set forth below. The risk factor set forth below replaces in its entirety the risk factor in our Annual Report on Form 10-K with the title “Our results of operations and financial condition may be adversely affected by public health epidemics, including the novel coronavirus reported to have originated in Wuhan, China”:
Our results of operations and financial condition may be adversely affected by public health epidemics, including the ongoing COVID-19 global health pandemic.
On March 11, 2020, the World Health Organization declared the global outbreak of COVID-19 to be a pandemic. The COVID-19 pandemic has significantly impacted economic activity and markets around the world. If the pandemic continues and conditions worsen, it could negatively impact our business, results of operations, financial condition and liquidity in numerous ways, including, but not limited to, those outlined below:
•It has resulted, and we expect it will continue to result, in lower revenues in certain of our product categories, including our interventional urology (which revenues are primarily concentrated in our Americas segment), interventional and surgical product categories, in which we sell products largely utilized in elective procedures, which have been significantly reduced or suspended due to the pandemic.
•It has resulted in higher revenues in our respiratory product category. However, we are unable to predict how long this sustained demand will last or how significant it will be.
•It may cause disruptions in the manufacture of our products. We currently rely on our 35 manufacturing sites, with major manufacturing operations located in the Czech Republic, Germany, Malaysia, Mexico and the U.S., to manufacture our products. The COVID-19 pandemic, and/or the governmental or regulatory actions taken in response to COVID-19 pandemic, may interfere with our ability, or that of our employees or suppliers to perform our and their respective responsibilities and obligations relative to the conduct of our business and create a risk to our ability to manufacture our products in a timely manner, or at all. We have experienced and expect to continue to experience inefficiencies in our manufacturing operations due to government restrictions placed on facilities in certain locations primarily in Asia. Additionally, we have experienced and continue to experience a higher than normal level of absenteeism across our global manufacturing sites. In an effort to increase the wider availability of needed medical device products, we may elect to, or the government may require us to, allocate manufacturing capacity (for example, pursuant to the U.S. Defense Production Act) in a way that adversely affects our regular operations and financial results, results in differential treatment of customers and/or adversely affects our customer relationships and reputation.
•While we have not experienced significant payment defaults by, or identified other significant collectability concerns with, our customers to date, we may be adversely impacted by delays in payments of outstanding receivables if our customers experience financial difficulties or are unable to borrow money to fund their operations, which may adversely impact their ability to pay for our products on a timely basis, if at all.
•The COVID-19 pandemic, including related illness, border closures, travel restrictions, quarantines, lockdowns or other workforce disruptions, could disrupt our suppliers or our suppliers’ suppliers and/or the distribution of our products, whether through our direct sales force or our distributors. These disruptions, or our failure to
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respond to them, could increase manufacturing or distribution costs or cause delays in delivering, or an inability to deliver, products to our customers.
•The COVID-19 pandemic has increased volatility and pricing in the capital markets, and volatility if likely to continue. We might not be able to continue to access preferred sources of liquidity when we would like, and our borrowing costs could increase.
These and other impacts of the COVID-19 pandemic, or other pandemics or epidemics, could have the effect of heightening many of the other risks described in the Risk Factors section of our Annual Report on Form 10-K for the year ended December 31, 2019. We might not be able to predict or respond to all impacts on a timely basis to prevent near- or long-term adverse impacts to our results. The severity, magnitude and duration of the COVID-19 pandemic is uncertain, rapidly changing and hard to predict. We do not yet know the full extent of potential delays or impacts on our business, our results of operations or financial condition or on healthcare systems or the global economy as a whole. However, these effects could have an adverse impact on our liquidity, capital resources, operations and business and those of the third parties on which we rely, and such impact could be material.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
Not applicable.
Item 3. Defaults Upon Senior Securities
Not applicable.
Item 4. Mine Safety Disclosures
Not applicable.
Item 5. Other Information
Not applicable.
29
Item 6. Exhibits
The following exhibits are filed as part of, or incorporated by reference into, this report:
| Exhibit No. | Description | |||||||||||||
| +10.1 | — | |||||||||||||
| +10.2 | — | |||||||||||||
| +10.3 | — | |||||||||||||
| +10.4 | — | |||||||||||||
| +10.5 | — | |||||||||||||
22 | — | |||||||||||||
31.1 | — | |||||||||||||
31.2 | — | |||||||||||||
32.1 | — | |||||||||||||
32.2 | — | |||||||||||||
101.1 | — | The following materials from our Quarterly Report on Form 10-Q for the quarter ended March 29, 2020, formatted in inline XBRL (eXtensible Business Reporting Language): (i) Cover Page; (ii) the Condensed Consolidated Statements of Income for the three months ended March 29, 2020 and March 31, 2019; (iii) the Condensed Consolidated Statements of Comprehensive Income for the three months ended March 29, 2020 and March 31, 2019; (iv) the Condensed Consolidated Balance Sheets as of March 29, 2020 and December 31, 2019; (v) the Condensed Consolidated Statements of Cash Flows for the three months ended March 29, 2020 and March 31, 2019; (vi) the Condensed Consolidated Statements of Changes in Equity for the three months ended March 29, 2020 and March 31, 2019; and (vii) Notes to Condensed Consolidated Financial Statements. | ||||||||||||
104.1 | — | The cover page of the Company's Quarterly Report on Form 10-Q for the quarter ended March 29, 2020, formatted in inline XBRL (included in Exhibit 101.1). | ||||||||||||
+ Indicates management contract or compensatory plan or arrangement required to be filed pursuant to Item 15(b) of this report.
30
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| TELEFLEX INCORPORATED | ||||||||||||||||||||
| By: | /s/ Liam J. Kelly | |||||||||||||||||||
Liam J. Kelly President and Chief Executive Officer (Principal Executive Officer) | ||||||||||||||||||||
| By: | /s/ Thomas E. Powell | |||||||||||||||||||
Thomas E. Powell Executive Vice President and Chief Financial Officer (Principal Financial Officer) | ||||||||||||||||||||
Dated: April 30, 2020
31
Exhibit 10.1
TELEFLEX
EMPLOYMENT CONTRACT FOR AN INDEFINITE PERIOD
The undersigned:
1. TELEFLEX MEDICAL B.V., having its registered office in Hilversum, represented by Mr. Gerry McCaffrey, hereinafter referred to as: “the Employer”
and
2. Mr. M. Wijker, residing at [ADDRESS OMITTED], hereinafter referred to as: “the Employee”;
parties have entered into the following employment contract:
Article 1
Commencement/Position/End
1.The Employee will enter the Employer's employment on 02/01/2019 in the position of Vice President Global QARA. The employment contract is entered into for an indefinite period of time. The work will ordinarily be performed in Vianen and after a period of 3 years the work location will be in Ireland.
2.The Employee acknowledges that in the performance of his duties he will be required to travel in or outside the Netherlands and Ireland on a regular basis and that his Base Salary as defined in article 2 includes remuneration thereto.
3.The employment contract can be terminated by either party by means of notice of termination, given with due observance of the statutory notice period. Notice of termination will be given with effect from the end of the month.
4.The first 2 months of the employment contract is considered to be a probationary period, during which either party may give notice of termination of the agreement with immediate effect.
5.The employment contract will in any case terminate, without notice of termination or any other action being required, on the first day of the month in which the Employee reaches either the age of 67 or the retirement age applicable at that time.
Article 2
Salary and other emoluments
1.The gross salary will be € 250,000- per year on the basis of a working week of 40 hours ("Base Salary''). The Base Salary will be paid monthly in 12 equal instalments.
2.The Employee is entitled to a holiday allowance of 8% of the salary payable by the Employer, to be paid out each year in the month of May. If the employment contract commences or comes to an end during the course of a calendar year, the holiday allowance will be calculated on a pro rata basis. The Employee will also receive a 'thirteenth month' bonus, to be paid out in the month of December.
3.The Employee will receive an annual car allowance for the use of his own car for company purposes of €15,000 to be paid monthly in 12 equal instalments.
Article 3
Expenses
1.The Employer shall reimburse the Employee for all costs incurred by the Employee which have been approved in advance by the Employer and which are directly related to the performance of the Employee's job, on submission of the necessary documents and subject to the Teleflex Travel and Business Global Expense Reimbursement Policy.
Article 4
AIP Bonus Scheme of 40%
1.In addition to the Base Salary, the Employee will be eligible to participate in the Teleflex annual incentive program (“AIP”) with a target award opportunity equal to 40% of the Base Salary.
2.The actual amount of any potential AIP award would be determined based on the Employee's performance and the financial performance of the Global Teleflex according to the Teleflex Incorporated Management Incentive Plan dated January 1, 2007 (“Plan”). Teleflex reserves the right to change, add to, or modify this Plan in whole or in part, for any reason with advance notice, during the plan year from year to year.
3.The effective date of the Employee's participation in the AIP is the Employee's date of hire 02/ 01/ 2019.
Article 5
Annual Long-Term Incentive Award, equity sign on grant
1.The Employee will be eligible to be considered for a long-term equity incentive award with an annual target of $150,000 subject to the Teleflex Incorporated Stock Plan (“Stock Plan”).
Equity incentive award values are based on the Teleflex Corporaten performance, the Employee's role in the organization and the Employee' s individual performance. The form of equity incentive award is decided by Teleflex Corporate and may include restricted share units, stock options or a combination of each. Equity incentive awards are subject to approval by the Compensation Committee of the
Board of Directors and the Teleflex Corporate Global may change the form of equity and vesting schedules at any time.
2.Payments or awards (if any) under the Stock Plan shall not form part of the employment conditions of the Employee, nor shall they be treated (neither at the time when it might apply nor in any period prior thereto nor any period thereafter) as remuneration for the purpose of pension arrangements nor shall they form any other employment-related entitlement, such payments or awards shall not be included in the calculation of a possible severance payment and the Employee waives all rights (if any) that he may have in this regard. Participation to the Stock Plan and/or payment of a therewith will not give any rights to participation and/or entitlement to such payments in (a) future financial year(s).
3.The Employee will receive a once off sign on equity grant of $90,000 upon commencement of Employment. This is a one time grant and the Employee cannot claim a once off sign on equity grant for any future years or any other future equity grants.
Article 6
Working times, working hours and overtime
1.The Employee will work from 8.30 a.m. until 5.00 p.m. on Mondays to Fridays with a break of 30 minutes per day for a lunch break. The average number of working hours per week is 40.
2.The Employee is entitled to 27 days' paid holiday, to be taken in consultation with the Employer.
3.The Employee commits himself to work overtime at the Employer's request if the Employer considers, at its own discretion, that there is cause to do so in the given circumstances.
Article 7
Illness
1.In the event of illness/incapacity for work within the meaning of Section 7:629 of the Dutch Civil Code (“Illness”), the Employee shall be entitled during the first year of illness to 100% of his/her Base Salary excluding other emoluments such as bonuses/awards increased by holiday allowance, during a maximum period of 52 weeks, but not later than until the end of the employment, after deduction of any benefits to which he/she is entitled owing to his/her incapacity for work.
2.In the event of Illness during the second year, but not later than until the end of the employment, the Employee shall be entitled to 70% of his last-earned gross salary increased by holiday allowance.
3.For the purposes of this Article, any consecutive periods of incapacity for work with intervals of less than four weeks shall be considered as one single period of incapacity for work.
4.The Employee undertakes to comply with the regulations for checks in the case of illness as laid down in the Employee Guide of Teleflex B.V.
Article 8
Extracurricular Activities and Gifts
1.The Employee shall refrain from performing any tasks - paid or unpaid - other than his/her tasks in the scope of this Employment Agreement, except with the prior written approval of the Employer.
Article 9
Confidentiality
1.The Employee acknowledges that she has been placed under a duty of confidentiality by the Employer in relation to all details regarding the business of the Employer or of any companies affiliated with the Employer, as regards clients or associates of the Employer or any related manner. The Employee is therefore prohibited, both during the employment contract and any time thereafter, from communicating in any way to any third party, directly or indirectly, any details regarding the business of the Employer or of companies associated with the Employer, as regards the clients or associates of the Employer or any related matter.
2.Notwithstanding the above, the Employee is not permitted to pass on information or information carriers related to the Employer or any companies affiliated with the Employer, to any third party, or to reveal such information (or cause such information to be revealed) outside the business of the Employer without the prior consent of the Employer.
3.The term “affiliated companies” as used in paragraphs 1 and 2 of this article is understood to include companies that belong to the same group as the Employer as well as companies in which the Employer participates in any way.
Article 10
Infringements
1.In the event of infringement of the provisions of the articles 5 and 6, the Employee will forfeit to the Employer, in deviation from Article 7:650 paragraphs 3, 4 and 5 of the Dutch Civil Code, without any prior notification or notice of default being required, an immediately payable penalty of €2,500 per infringement and a penalty of €500 for each day that the infringement continues.
2.Notwithstanding the Employer’s entitlement to the aforementioned penalty, the Employee may, in deviation from the provisions of Article 6:92 paragraphs 1, 2 and
3 of the Dutch Civil Code, be obliged to comply with paragraphs 1 and 2 of the present Article and/or to provide full compensation for any infringement.
Article 11
Applicable Employee Guide
1. The Employee Guide applied by the Employer forms an integral part of this employment contract. By signing this employment contract the Employee declares that she has received a copy of the Employee Guide, that she has familiarised herself with its content and that she agrees to its content.
Article 12
Unilateral Amendments
The Employer reserves the right to cancel or unilaterally amend the conditions of employment incorporated in this employment contract or the Employee Guide referred to in Article 5 if the circumstances give the Employer cause to do so.
Article 13
Pensions
1.The Employee will become a member of the Employer’s pension scheme. The Employee’s contribution to the pension scheme will be 25% of the applicable pensionable earnings.
2.By signing this employment contract the Employee declares that she has received a copy of the Employer's pension regulations and agrees to the content thereof. The parties declare to each other that they will comply with the obligations arising from those pension regulations.
Article 14
Return of Property
1.Upon termination of the Employment Agreement - irrespective of the way in which and reasons for which the Employment Agreement was terminated -, as well as in the event of a suspension, the Employee shall be obliged to provide the Employer of his/her own accord with all goods in his/her possession which belong to the Employer and/or its affiliated companies, the employees working there, the clients and other relations (including, for example, the iPhone, (portable) computer, iPad, documents or other data carriers, as well as all copies of such documents), all in the broadest possible sense.
Article 15
Legal jurisdiction / choice of court
1. This employment contract is governed by Dutch law.
2. The Dutch courts have exclusive jurisdiction to hear any dispute resulting directly or indirectly from this employment contract.
Article 16
Final
1.This employment contract replaces all employment contracts between the parties of this employment contract and/or between the Employee and any of the Employer's affiliated companies of an earlier date, including the employment contract referred to under recital (A) and (B) of this employment contract and is deemed to constitute the entire employment contract between the parties.
2.This employment contract is drafted in both English and Dutch. In case of any discrepancy between the provisions in the English version and the Dutch version thereof, the provisions in the Dutch version prevail.
Drawn up and signed in duplicate by both parties in Vianen,
Date: October 16, 2019
/s/ Gerry McCaffrey
Gerry McCaffrey
The Employer
/s/ Mario Wijker
The Employee
Exhibit 10.2
TELEFLEX
Mario Wijker
[ADDRESS OMITTED]
31 January 2019
Dear Mario:
The purpose of this letter is to confirm our mutual understanding of the terms and conditions of your benefits package as it relates to your current commuting arrangement between the Netherlands and Ireland and to your eventual permanent relocation and localization to Ireland, per your employment agreement.
Pre-localization
In the time between your start date and the date you relocate to Ireland, it is intended that you will commute from your home in the Netherlands to the Athlone, Ireland office at a frequency agreed upon by you and the Company.
Payroll/ /Retirement/Medical Benefits
During this time, you will remain on the Netherlands payroll and continue paying into all applicable local tax, social security and retirement schemes. Additionally, your annual vacation entitlement, holiday schedule and all applicable rules will be aligned to the Netherland's policy.
Should our third-party tax firm (Deloitte) advise us that the Company is required to report your earnings and/or you become required to pay taxes in Ireland based on the extent of your Irish-sourced income, the Company may be required to split your pay between the Netherlands and Ireland to ensure compliance with both jurisdictions. Any payroll changes will be discussed and reviewed with you prior to implementation.
You will continue to participate in the Netherlands medical coverage during your commuting arrangement to Ireland. The Company offers Business Travel Accident Insurance to cover any medical costs related to accidents or illness while you are traveling on Company business. Please see more information attached.
Relocation Benefits Available during Commuting Arrangement from Netherlands to Ireland
Immigration
Costs related to required passports, visas, immunizations, standard physical examinations and other reasonable and necessary medical or document costs for you will be reimbursed by the Company.
Relocation Allowance
The purpose of this allowance is to cover the cost of any incidental expenses associated with the relocation that are not otherwise reimbursed or paid for specifically in this agreement. The Relocation Allowance, payable to you upon signing this agreement and your repayment agreement, is equal to two months of your annual Netherlands base salary and is subject to applicable taxes and social security.
Relocation Assistance
The Company will pay for relocation services through our relocation company Aires to assist you with the purchase of your home in Ireland. The services are outlined below:
Up to 4 days of HOME PURCHASE ASSISTANCE
•DSC to research market within required budget
•Book and accompany to viewings
•Provide copy of itinerary to IAC
•Identify property
•Engage Solicitor & negotiate rates
•Engage Surveyor
•Referral to mortgage package provider
•Introduction to furniture and appliance purchase
•Help negotiate costs and fees
•Arrange for telephone, internet, cable etc. installation
•Identify insurance company for home and car
•Community familiarization, including shopping facilities
•
To the extent any of the relocation services provided are deemed to be a taxable benefit-in-kind, you will be responsible for paying any tax or social charges.
Relocation Benefits Available upon Localization to Ireland
You would be eligible for any of the relocation benefits stated above not utilized during the commuting phase of your relocation for the localization to Ireland.
Immigration
Costs related to required passports, visas, immunizations, standard physical examinations and other reasonable and necessary medical or document costs for your accompanying family members will be reimbursed by the Company. Work permits for your family members are not included or sponsored by the Company.
Household Goods Shipment
The Company will provide you with a relocation consultant who will coordinate all aspects of your household goods move including the pre-move survey, packing, loading, transportation, insurance valued at up to 218,000 EUR, procurement of customs documentation, customs clearance, storage, unloading and unpacking. The size of the surface and air shipments covered by the Company will depend on your family size. You will also be eligible for excess baggage fees of up to 50 lbs. or 23 kilos.
Teleflex does not provide support for items requiring special care or involving security considerations such as furs, jewelry, guns, weapons, valuable hobby collections, and irreplaceable art. Additionally, Teleflex will not pay for the shipment of automobiles, mobile homes, vans, boats, motorcycles or other large or fragile cargo (i.e., wine collections). All shipped items must meet the customs and import requirements of the destination country. Surface shipment is limited to essential and approved items.
The maintenance of an inventory listing required for insurance or custom/immigration purposes is your responsibility. Teleflex does not arrange for, or cover any costs associated with, the shipment of pets.
Purchase/Sale of Residence
Teleflex will not reimburse any costs associated with the sale or purchase of a residence in any country as a result of this localization, including, but not limited to, closing costs, real estate commissions, taxes of any kind and losses on the eventual sale of the residence. Teleflex will also not reimburse any currency fluctuations, foreign exchange losses, duplicate housing costs, or taxes on the capital gain triggered by a sale.
Repayment Agreement
Prior to providing relocation services, the Company will require your agreement to repay relocation expenses in the event that you voluntarily terminate your employment with the Company within two years of the services being provided. As it is anticipated that relocation support will be delivered in two phases, first during your commuting arrangement (home purchase assistance, relocation allowance, and immigration) and then a household goods shipment upon localization to Ireland, you will receive two separate agreements for signature that will align the specified repayment period to the applicable dates of service.
Coordination of your Commuting Arrangement and Relocation
The Total Rewards function will coordinate all technical and practical aspects of your relocation including authorizing and managing services with third-party vendors, authorizing payments to you, instructions for Home and Host Location payrolls as well as coordinating with the Home and Host Location Human Resource Business Partners. Please contact Jessica Whalen (Jessica.whalen@teleflex.com) or Diana Clifford (diana.clifford@teleflex.com).
Company's Relocation Consultant
The Company's Relocation Consultant is AIReS. You will be assigned a counselor who is to be your relocation coordinator and information resource on all aspects of your relocation and corresponding services. AIReS should process the audit and reimbursement of all relocation expenses related to your relocation, such as immigration expenses.
Company's Third-Party Tax Advisor
The Company's third-party tax advisor is Deloitte. You will be assigned a home country and host country tax consultant. You will be responsible for paying all actual tax on your earnings in the Netherlands, and in Ireland should that become required, including taxable benefits-in-kind.
Deloitte will arrange a briefing to cover the tax issues associated your frequent travel and subsequent localization. This will assist you in considering the tax implications of the localization, and is also an important step in ensuring that you and the Company are in compliance with all Netherlands and Irish tax regulations. For this reason, the tax briefing is mandatory.
Deloitte will also be charged with preparing and filing your Netherlands and Irish tax returns for the 2019 tax year. Please note that you are responsible for collecting all data required for your tax filing. Any penalties and interest incurred on late payments due to delays in receiving your information will be your responsibility.
Data Privacy
As a condition of your commuting arrangement and relocation, you are explicitly consenting to the collection, retention, use and transfer, in electronic or other form, of personal data by and among, as applicable, the Company and any of its affiliates and the third-party vendors engaged by the Company to provide specific services, including but not limited to relocation services providers and global tax services firms, for the exclusive purpose of implementing, administering and managing your commuting arrangement and relocation in compliance with Company policy and practice and local tax laws.
You understand and agree that the Company and any of its affiliates and its third-party vendors collect, retain, use and transfer certain personal information about you, and potentially your family members as needed, including but not limited to names, home addresses and telephone numbers, dates of birth, compensation, benefits, social security or other identification numbers, nationalities and job titles for the purpose of implementing, managing and administering your commuting arrangement and relocation.
You understand and agree that the Company and any of its affiliates and its third-party vendors collect, retain, use and transfer certain personal information about you may be located in your home country, or elsewhere, and that the data recipient's country may have different data privacy laws and protections than your home country. You understand that you may request a list with the names and addresses of any potential recipients of the shared data by contacting Diana Clifford in the Total Rewards function.
You understand and agree (i) that the Data will be held only as long as is necessary to implement, manage, and administer your commuting arrangement and relocation; (ii) that you may, at any time, view the data, request additional information about the storage and processing of the data, require any necessary amendments to the data, or refuse or withdraw consent to the use and transfer of the data, without cost, by delivering such revocation or withdrawal of consent in writing to Diana Clifford; and (iii) that refusal or withdrawal of consent may affect the administration of your commuting arrangement and relocation.
Sincerely yours,
/s/ Cam Hicks Date: February 1, 2019
Cam Hicks
VP Global HR and Communications
Acknowledge and Concur: /s/ Mario Wijker
Mario Wijker
Cc: Jessica Whalen
Cc: Diana Clifford
Cc: Monika Vikander-Hegarty
Exhibit 10.3
TELEFLEX MEDICAL EUROPE LIMITED
and
JAMES WINTERS
___________________________________________________________________________________________
CONTRACT OF EMPLOYMENT
___________________________________________________________________________________________
1
THIS AGREEMENT is made on March 24, 2020 (this Agreement)
BETWEEN:
(1)TELEFLEX MEDICAL EUROPE LIMITED (registered number 428329) of IDA Business & Technology Park, Dublin Road, Garrycastle, Athlone, Co. Westmeath, N37 EC90 (the Company); and
(2)JAMES WINTERS of [ADDRESS OMITTED] (you),
(each a Party and together the Parties).
The Parties agree that the Company, subject to the following terms, will employ you on the conditions set out in this Agreement:
1.DEFINITIONS AND INTERPRETATION
1.1 Words and expressions used in this Agreement (including the Schedule to it), except insofar as the context requires otherwise or unless defined elsewhere in this Agreement, have the meaning (if any) given to them in the Schedule hereto.
1.2 This Agreement is to be construed and interpreted in accordance with the Schedule.
1.3 The Schedule to this Agreement is to have effect as part of this Agreement.
1.4 References to any statute, statutory instrument or any statutory provision shall be construed as references to the statute, statutory instrument or statutory provision as in force at the date of this Agreement and as subsequently re-enacted, consolidated or amended and shall include references to any statute, statutory instrument or any provision of which it is a re-enactment, consolidation or amendment.
1.5 The Schedule to this Agreement is an integral part of this Agreement and references to this Agreement shall include reference thereto.
2.WARRANTIES
2.1 You warrant that:
2.1.1 by virtue of entering into this Agreement you will not be in breach of any express or implied terms of any contract, court order or any other obligation to any third party binding upon you;
2.1.2 you have not made any material misrepresentations or omissions to the Company in respect of your previous employment, qualifications or generally;
2.1.3 you are not prevented, restricted or disqualified from holding the office of director or secretary to any company, including, for the avoidance of doubt, the Board or the board of any Group Company;
2.1.4 you are entitled to work and reside in Ireland without any additional approvals and/or permits and you will notify the Company immediately if you cease to be so entitled at any time during your employment with the Company; and
2.1.5 you will not without the written consent of the Company work for anyone else while in the employment of the Company.
2.2 You expressly acknowledge that all prior agreements, understandings, assurances, statements, promises, warranties, representations or misrepresentations (whether written or oral) between the Parties are superseded by this Agreement, including but not limited to your offer letter dated 20 October 2017.
3.APPOINTMENT
2
3.1 The Company shall employ you and you agree to serve the Company as Corporate Vice President, Manufacturing & Supply Chain of the Company.
3.2 Your employment under this Agreement commenced on 17 February 2020 and shall continue (subject to the provisions of this Agreement) until terminated by either party giving to the other not less than six (6) months' prior written notice (the Notice Period).
3.3 Your prior service with the Company will be recognised for continuity of service purposes and, accordingly, your commencement date for the purposes of any period of continuous employment with the Company will be 20 March 2018, your original hire date
4.DUTIES
4.1 Your normal duties are as follows:
4.1.1 responsible for all of Global Operations with the Teleflex Group; and
4.1.2 such other duties as may be assigned to you in accordance with Section 4.4 hereof.
4.2 You will directly report to the CEO of Teleflex Incorporated (the CEO) and/or the Board and/or such other persons as the Company may direct from time to time.
4.3 You agree to:
4.3.1 faithfully and diligently perform duties and exercise such powers appropriate to your position which are from time to time assigned to or vested in you by the CEO and/or the Board and/or such other persons as the Company may direct from time to time. Your functions and responsibilities have been agreed between you and the CEO and/or the Board and/or such other persons as the Company may direct from time to time and whilst these may be changed from time to time, after consultation with you in the case of material changes, no change shall be made which would be inconsistent with your position;
4.3.2 comply with all lawful and reasonable directions of the CEO and/or the Board and/or such other persons as the Company may direct from time to time;
4.3.3 comply with the Company's and the Group's rules, regulations, policies and procedures from time to time in force as well as any applicable regulatory obligations and codes of practice whether or not such obligations are otherwise legally binding. In so far as there is any conflict between the terms of this Agreement or any other document, this Agreement shall prevail;
4.3.4 use your best endeavours to promote the interests, business and welfare of the Company and the Group;
4.3.5 keep the CEO and/or the Board and/or such other persons as the Company may direct from time to time promptly and fully informed (in writing if so requested) of your conduct of the business or affairs of the Company and the Group and provide such explanations as may be required by the CEO and/or the Board and/or such other persons as the Company may direct from time to time; and
4.3.6 not knowingly do or willingly permit to be done anything to the prejudice, loss or injury of the Company or any Group Company and shall carry out such duties in a competent manner.
4.4 The CEO and/or the Board and/or such other persons as the Company may direct from time to time may assign to you other appropriate duties at its discretion at any time during your employment which may include duties to be performed on behalf of any Group Company.
4.5 You shall (without further remuneration) if and for so long as is required by the CEO and/or the Board and/or such other persons as the Company may direct from time to time:
4.5.1 carry out duties on behalf of any Group Company;
3
4.5.2 act as an officer of any Group Company or hold any other appointment or office as nominee or representative of the Company or any Group Company; and
4.5.3 carry out such duties and the duties attendant on any such appointment as if they were duties to be performed by you on behalf of the Company.
5.PLACE OF WORK
5.1 Your normal place of work is at the Company's premises at the IDA Business & Technology Park, Dublin Road, Garrycastle, Athlone, Co. Westmeath, Ireland. However, the Company reserves the right and by signing this Agreement you hereby agree to carry out your work, either on a temporary or permanent basis, at such location nationally or internationally as the Company may reasonably require from time to time.
5.2 The Company reserves the right to change the place of your employment, in which event, you will be given reasonable notice.
5.3 Any such change to place of work will not constitute a breach of this Agreement or give rise to any entitlement to payment to you for disturbance or otherwise.
6.HOURS OF WORK
6.1 The normal office hours of the Company are between 8:15am and 5:00pm Monday to Thursday and 8:15am to 4:00pm on Friday. You determine your own working hours for the purposes of section 3(2)(c) of the Organisation of Working Time Act 1997. You will be expected to work such hours as are necessary to ensure the fulfilment of your job function and proper performance of the duties, including at weekends and beyond normal business hours. You are entitled to rest breaks in accordance with the Organisation of Working Time Act 1997.
6.2 Save where on authorised leave (for holiday, or sickness or other reason) and save as modified by the provisions of this Agreement where you are placed on Garden Leave or suspended, your responsibilities with the Company will be such that you will devote the whole of your time, attention and ability during your hours of work to the Company (or where applicable any Group Company) to the performance of your duties under this Agreement.
6.3 From time to time, you may be required to travel and/or work such additional time outside normal core hours as may be required to complete your responsibilities without additional remuneration, holidays or leave.
7.CONFLICTS OF INTEREST AND DEALINGS IN SECURITIES
7.1 You shall be bound by and shall comply with the terms of the Teleflex Incorporated Code of Ethics at all times during the Term.
8.SALARY
8.1 During the Term, the Company shall pay you a basic annual salary of €308,287 (gross) which shall accrue from day to day and be payable by equal monthly instalments in arrears by way of direct transfer into your nominated bank account on the 21st of each calendar month subject to PAYE, PRSI, USC and such other deductions or withholdings as are required by law (including benefit-in-kind taxation).
8.2 There is no obligation on the Company to make any increase to your basic annual salary and any increase given in any year shall not create an entitlement or expectation of future increase.
8.3 Your basic annual salary shall be deemed to include any fees receivable by you as an officer of the Company or any Group Company or of any company or unincorporated body in which you hold office as a nominee or representative of the Company.
8.4 Your salary, remuneration, and all benefits shall at all times be subject to approval by the Compensation Committee of the Board of Directors of Teleflex Incorporated and amendments shall be at their discretion.
9.BONUS
4
9.1 The Company operates a discretionary performance-related bonus scheme called the Teleflex Annual Incentive Program (AIP). In addition to your basic annual salary, you will be considered for participation in the AIP with a target payout of 50% of your annual salary. The AIP is designed to provide an annual cash incentive award to eligible employees who meet certain performance criteria. Any potential award would be based on the achievement of certain specified financial and other performance criteria and your achievement of certain specified individual performance objectives.
9.2 Your participation in the AIP and any potential AIP award to be paid to you for any given year shall, in each case, be subject to approval by the Compensation Committee of the Board of Directors of Teleflex Incorporated, which shall have the authority to reduce any AIP award in its sole discretion in accordance with the terms of the applicable AIP plan.
10.ANNUAL LONG-TERM INCENTIVE PROGRAM
10.1 You will be eligible to be considered for a long-term equity incentive award through the Teleflex Incorporated Stock Plan.
10.2 Equity incentive award values are based on the Company's performance, your role in the organization and your individual performance.
10.3 The form of equity incentive award may include restricted share units, stock options, other equity awards provided for under the Teleflex Incorporated Stock Plan or any combination thereof. Equity incentive awards, including the amount, form and allocation thereof and the vesting schedules and other terms applicable thereto, are subject to approval by the Compensation Committee of the Board of Directors of Teleflex Incorporated and may change from time to time.
11.OTHER BENEFITS
11.1 The Company may, from time to time, offer you benefits other than those specified in this Agreement.
11.2 Participation in benefit schemes shall be subject always to the rules and conditions applicable to each such scheme. The Company reserves the right at all times to vary or discontinue any benefits or benefit schemes in which you may be entitled to participate and/or substitute new benefit schemes for any scheme in which you may be eligible to participate. Any Company benefit scheme, which is insured, will be subject to and conditional upon the terms and conditions of the relevant policy of insurance.
12.CAR ALLOWANCE
12.1 You will receive on an annual basis €18,000 gross as a car allowance, paid in 12 monthly instalments.
13.PRIVATE HEALTH INSURANCE
13.1 From the date of this Agreement you are eligible to receive fully subsidised health insurance for you and your dependents, subject to completion of an application form.
14.EXPENSES
14.1 You shall be entitled to be reimbursed for all reasonable out-of-pocket expenses (including hotel, travelling and entertainment expenses) which you may from time to time be authorised to incur in the proper performance of your duties in accordance with any relevant policy from time to time subject to the production of such receipts or other evidence as the Company may reasonable require.
15.PENSION
15.1 You will be eligible to participate in the Teleflex Pension Scheme which is a defined contribution scheme which has a sliding scale for employee contributions and Company matches.
15.2 Whilst the Company intends to continue the operation of the current Teleflex Pension Scheme indefinitely it must as a matter of ordinary business prudence reserve its right to amend or terminate the Scheme at its discretion.
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16.DEDUCTIONS
16.1 The Company shall be entitled at any time during your employment, or in any event on its termination, to deduct from your remuneration any monies due from you to the Company including but not limited to any overpayments made to you, outstanding loans, advances, the cost of repairing any damage or loss to the Company's property caused by you (and of recovering the same) due to your negligence, excess holiday pay, any sums due from you in respect of sickness benefit and any other monies owed by you to the Company including any amounts owing by you to any credit card provider in relation to any corporate card provided to you through the Company. By signing this Agreement, you hereby consent to any such deductions from remuneration or other sums due by the Company.
17.ANNUAL LEAVE
17.1 You are entitled to 24 working days' annual leave per annum calculated by reference to time worked on a pro rata basis (exclusive of public holidays).
17.2 Annual Leave must be agreed with your manager as early as possible. Management will normally try to accommodate individual preferences for holiday dates, but the needs of the business may have to take precedence, particularly where inadequate notice is given.
17.3 The Company holiday year runs from January 1st to December 31st. You will be allowed to carry over 5 unused holidays from one year to the next to be used by June 30th, unless otherwise agreed with the Company in writing.
17.4 You are also entitled to paid public holidays subject to compliance with the Organisation of Working Time Act 1997.
17.5 Upon termination of your employment you shall either be entitled to salary in lieu of any accrued but untaken holiday entitlement or be required to repay to the Company (by way of deductions or otherwise) any salary received in respect of holiday taken in excess of your holiday entitlement, such payment to be calculated on the basis of 1/260th of your basic annual salary for each day of outstanding or excess holiday entitlement as appropriate.
18.ILLNESS & Absence Procedure
18.1 In case of sickness or other incapacity for work, you must comply with the Company's policy from time to time in force, regarding notification and medical certification. Full details of the Company's policy are set out in the Employee Handbook.
18.2 You must notify the Company of any unplanned absence before 10am on the first and any subsequent day of absence (whether through illness or otherwise). Where there is continuing absence, you shall keep the Company fully informed on a regular basis of their condition and expected return to work.
18.3 A medical certificate must be produced in respect of absence of three days or more and afterwards, at such intervals as required by the Company.
18.4 The Company reserves the right to have you medically examined by a registered medical practitioner to be selected by the Company at any time during employment. Failure to attend at a medical examination when requested to do so may result in disciplinary action and/or termination of sick pay (if applicable). The Employee acknowledges and agrees that the Company is entitled to make relevant determinations based on the advice of its nominated doctor and/or consultant.
18.5 The Company is not obliged to pay you during any unauthorised absence (whether through illness or otherwise), and in such event you should avail of any appropriate social welfare benefits from the Department of Employment Affairs and Social Protection. However, the Company may in its absolute discretion and without creating any expectation, precedent or entitlement, decide to pay you during periods of certified sickness absence. Such payment will be strictly conditional on your complying with all notification and certification requirements and attending medical examinations when requested by the Company.
18.6 Where the Company makes payments to you during absence through illness and the illness is or appears to be an occasion of actionable negligence of a third party in which damages are or may be recoverable, you shall immediately notify the Company of that fact and of any claim, settlement, agreement or judgment made or awarded in connection with it, and shall give to the Company all particulars which the Company may reasonably require and shall, if required
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by the Company refund to the Company that part of any damages recovered related to loss of earnings for the period of the illness as the Company may reasonably determine, provided that the amount to be refunded will not exceed the amount of damages or compensation recovered by you less any cost borne by you in connection with the recovery of such damages or compensation and will not exceed the total remuneration paid to you by the Company by way of salary in respect of the period of illness.
19.TERMINATION
19.1 The Company and/or the Board shall at all times be entitled to terminate this Agreement pursuant to clause 3.2 and 19.2.
19.2 The Board may, at its sole and absolute discretion, terminate your employment at any time by serving a notice under this clause stating that this Agreement is being determined in accordance with this clause and undertaking to pay to you within 21 days a sum equal to your basic annual salary in lieu of the Notice Period or unexpired part thereof (subject to the deduction of applicable PAYE, PRSI and USC) together with any accrued holiday entitlement pursuant. For the avoidance of doubt, the payment in lieu shall not include any element in relation to:
19.2.1 any bonus or commission payment that might otherwise have been due during the period for which the payment in lieu is made;
19.2.2 any payment in respect of any additional benefits which you would have been entitled to receive during the period for which the payment in lieu is made; and/or
19.2.3 any payment in respect of any holiday entitlement that would have accrued during the period for which the payment in lieu is made.
19.3 On termination of this Agreement howsoever arising, the terms of clauses 20 (Confidentiality), 21 (Intellectual Property Rights), and 26 (Restrictive Covenants) shall remain in full force and effect.
19.4 The Board shall be entitled, by notifying you in writing, to terminate this Agreement and your employment without notice or any payment by way of compensation, damages, payment in lieu of notice or otherwise if you shall:
19.4.1 commit any act of serious misconduct;
19.4.2 commit any material or persistent breach of any of the terms or conditions of this Agreement;
19.4.3 have a bankruptcy order made against you or shall compound with or enter into any voluntary arrangements with your creditors;
19.4.4 be charged with or convicted of any criminal offence (other than an offence under the Road Traffic Acts for which a penalty of imprisonment is not imposed);
19.4.5 commit any act of dishonesty or act in any way which may, in the reasonable opinion of the Company, bring the Company or any Group Company into disrepute or discredit;
19.4.6 wilfully neglect or refuse to carry out any of your duties or to comply with any instruction given to you;
19.4.7 be prevented by illness or accident from performing your duties for a period in aggregate of 20 weeks in any 40 consecutive weeks or if you shall be absent from your duties by reason of illness or accident for more than 150 working days in any consecutive 12 months except where such incapacity arises out of the performance of your duties. You confirm that you do not suffer from any mental or physical illness that would affect your performance of your duties herein;
19.4.8 be restricted or disqualified from holding office in any company or cease to have any regulatory approval required to enable you to properly perform your duties;
19.4.9 engage in fraud or embezzlement or any other illegal conduct with respect to the Company;
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19.5 The Board shall have the right to suspend you on full pay for a reasonable period pending any investigation and subsequent disciplinary hearing (if any), including any appeal hearing, into any potential dishonesty, gross misconduct or any other circumstances which may give rise to a right to the Company to terminate pursuant to clause 19.4 above. In such circumstances the Board may:
19.5.1 exclude you from all or any premises of the Company or any Group Company;
19.5.2 require you to abstain from engaging in any contact (whether or not initiated by you) which concerns any of the business affairs of the Company or any Group Company with any customer, client, supplier, other business connection, employee, director, officer, consultant or agent of the Company or any Group Company;
19.5.3 require you to deliver up to the Company without destruction, deletion or redaction of any data or images, any correspondence, documents, laptops, computer drives, computer disks and other computer equipment, tapes, mobile telephones or Blackberry or Smartphone wireless devices (or similar) in your profession or under your control and which belong to the Company or any Group Company and to provide to the Company full details of all then current passwords or other privacy or security measures used by you in respect of such equipment; or
19.5.4 suspend or limit your access to the Company's computer, e-mail, telephone, voicemail and other communication systems or databases.
19.6 You shall not at any time during any period when you are required to cease the performance of your duties under clause 19.10 or after the Termination Date make any public statements in relation to the Company or any Group Company or any of their officers or employees. You shall not after the Termination Date represent yourself as being employed by or connected with the Company or any Group Company.
19.7 All property of the Company and any Group Company including all Confidential Business Information, credit, charge and expense cards, books, notes, memoranda, correspondence, tapes, codes, keys, papers, drawings, designs, documents, records, computer disks, computer hardware, computer software, laptops, mobile phones, memory sticks and other storage devices, client contact information posted by you to social media sites such as LinkedIn and passes in your possession or control are and remain the property of the Company or such Group Company and you shall deliver all such items in your possession, custody or control immediately to the Company on the Termination Date, or earlier if requested by the Company (including, for the avoidance of doubt, where you are required to cease the performance of your duties under clause 19.10). You shall, if so required by the Company, confirm in writing compliance with your obligations under this clause and in particular that all Company property has been delivered up to the Company before the termination of your employment.
19.8 If, before the termination of this Agreement, your employment shall be terminated by reason of the liquidation or other cesser of operations of the Company for the purpose of reconstruction or amalgamation and you shall be offered employment with any concern or undertaking resulting from such reconstruction or amalgamation on terms and conditions not less favourable than the terms of this Agreement, then you shall have no claim against the Company or any Group Company in respect of the termination of your employment or loss of office.
19.9 If you are a director of the Company or any Group Company, you shall, at the request of the Company, resign without claim for compensation as an officer of the Company or of any Group Company and from all other appointments or offices which you hold as nominee or representative of the Company or any Group Company:
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19.9.1 on termination of this Agreement for whatever reason; or
19.9.2 if at any time during the Term you are prevented from performing your duties whether through incapacity or otherwise and the Company requires you to resign; or
19.9.3 during any period when the Company has ceased to provide work for you pursuant to clause 19.10, and in any event, on the Termination Date.
If you should fail to do so within seven days, the Company is hereby irrevocably authorised to appoint some person in your name, as your attorney and on your behalf to sign any documents or do any things necessary or requisite to effect such resignation(s).
19.10 The Company may, at any time and for any reason, following the giving of notice by either Party to terminate this Agreement and for such period as it may specify not exceeding the Notice Period:
19.10.1 require you to perform:
a.all your normal duties; or
b.a part only of your normal duties and no other; or
c.such other duties as it may require and no others; or
d.no duties whatever;
19.10.2 exclude you from all or any premises of the Company and any Group Company;
19.10.3 require you not to contact any customers, clients, consultants, officers, suppliers or employees of the Company of any Group Company in connection with the business of the Company or any Group Company;
19.10.4 require you to perform some or all of your duties from home;
19.10.5 require you to assist the Company to arrange a proper handover of your duties and responsibilities to another employee of the Company;
19.10.6 require you to resign from any directorship or office you may hold by virtue of your employment and in the event of your failure to do so, the Company is hereby irrevocably authorised to appoint some person in your name to sign and deliver the letter(s) of resignation to the Board and the board of directors for the time being of any other Group Company, as applicable;
19.10.7 suspend your access to all or any information technology systems of the Company and any Group Company; and/or
19.10.8 any combination of the above.
Any such period during which one or more of the above circumstances pertains shall be referred to as Garden Leave provided that the Company has so specified in writing that you have been placed on Garden Leave.
During Garden Leave:
19.10.9 you shall remain entitled to your normal remuneration provided that you comply with the terms of this Agreement, such compliance or otherwise to be determined at the sole discretion of the Board;
19.10.10 if requested by the Company, you should keep the Company reasonably informed of your whereabouts so that you can be called upon, on reasonable notice, to perform any appropriate duties as required by the Company or any Group Company;
19.10.11 all other terms of your employment will continue including, without limitation, your obligations of good faith, fidelity, confidentiality, fiduciary duties and all of your express and implied obligations; and
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19.10.12 the Company shall be entitled at any time to appoint a further executive, director or employee having the responsibilities similar to those undertaken by you to act jointly with you and in that event with such appointment.
20.CONFIDENTIALITY
20.1 You acknowledge that during the Term you shall, in the performance of your duties, become aware of trade secrets and other Confidential Business Information relating to the Company, the Group Companies, their businesses and its or their past, current or prospective suppliers, clients or customers and their businesses.
20.2 Without prejudice to your general duties at common law in relation to such trade secrets and other confidential information, you shall not (except in the proper performance of your duties under this Agreement) during the Term or at any time after the Termination Date (without limit):
20.2.1 use for your own account or directly or indirectly disclose, communicate or divulge to any person whomsoever and shall use your best endeavours to prevent the publication, communication or disclosure of any Confidential Business Information or any trade secret or other confidential information concerning the business finances, dealings, transactions or affairs of the Company or any Group Company or of any of their respective customers or clients entrusted to you or arising or coming to your knowledge during the course of your employment or otherwise.
20.2.2 make, otherwise than for the benefit of the Company or any Group Company, any notes or memoranda relating to any Confidential Business Information or other matter within the scope of the business of the Company or any Group Company or concerning any of the dealings or affairs of the Company or any Group Company; or
20.3.3 use or permit to be used any such notes or memoranda otherwise than for the benefit of the Company or any Group Company, it being the intention of the parties hereto, that all such notes or memoranda made by you during this Agreement shall be the property of the Company or the relevant Group Company and left at its registered office or place of business upon the termination of your employment.
20.3 The obligations contained in this clause shall not apply to any disclosures required by law and shall cease to apply to information or knowledge which may subsequently come into the public domain otherwise than by reason of your default.
20.4 Any breach by you of the provisions of this clause will be regarded by the Company as a serious disciplinary matter and may, if committed while you are employed by the Company, result in disciplinary action being taken against you up to and including dismissal without notice.
21.INTELLECTUAL PROPERTY RIGHTS
21.1 This clause relates to all Intellectual Property (as defined in clause 21.8 below) discovered, conceived, invented, developed, created or improvements in procedure made or discovered by you (whether alone or jointly with others) while in the employment or service of the Company and/or the Group in connection with or in any way affecting or relating to the businesses of the Company and/or the Group or capable of being used by the Company and/or the Group. You shall promptly notify and disclose to the Company and/or the Group, or any person(s) designated by the Company and/or the Group, all such Intellectual Property and, whenever requested by the Company and/or the Group and in any event upon the termination of this Agreement, deliver up to the Company and/or the Group all correspondence and other documents, papers and records and all copies thereof in your possession, custody or power relating to any such Intellectual Property.
21.2 All Intellectual Property to which this clause applies shall to the fullest extent permitted by law automatically vest in, belong to, and be the absolute sole and unencumbered property of the Company and/or the Group. You undertake to hold on trust for the benefit of the Company and/or the Group any such Intellectual Property to the extent that the same may not be, and until the same is, vested absolutely in the Company and/or the Group.
21.3 To the extent any Intellectual Property to which this clause applies is not already owned by the Company and/or the Group as a matter of law or by prior written assignment by you to the Company and/or the Group, you hereby assign (including, without limitation, by way of present assignment of future rights) to the Company and/or the Group, and agree to assign to the Company and/or the Group in the future (to the extent required), all right, title and interest that
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you now have or acquire in the future in and to any and all such Intellectual Property. You shall further cooperate with the Company and/or the Group in obtaining, protecting and enforcing the Company's and/or the Group's rights and interests in Intellectual Property. Such cooperation shall be at the Company's and/or the Group's expense, and shall include, at the Company's and/or the Group's election, without limitation, signing all documents reasonably requested by the Company and/or the Group for patent, copyright and other Intellectual Property applications and registrations, and individual assignments thereof, and providing other reasonably requested assistance. Your obligation to assist the Company and/or the Group in obtaining, protecting and enforcing the Company's and/or the Group's Intellectual Property rights shall continue following your employment with the Company and/or the Group, but the Company and/or the Group shall be obliged to compensate you at the prevailing reasonable consulting rate for any time spent and any out-of-pocket expenses incurred at the Company's and/or the Group's request for providing such assistance. Such compensation shall be paid irrespective of, and is not contingent upon, the substance of any testimony you may give or provide while assisting the Company and/or the Group.
21.4 If the Company and/or the Group is unable for any reason whatsoever to secure your signature on any lawful and necessary document to apply for, execute or otherwise further prosecute or register any patent or copyright application or any other Intellectual Property application or registration, you hereby irrevocably designate and appoint the Company and/or the Group and its duly authorised officers and agents as your agents and attorneys-in-fact to act for and on your behalf and instead of you to execute and file such lawful and necessary documents and to do all other lawfully permitted acts to further prosecute, issue and/or register patents, copyrights and any other Intellectual Property rights with the same legal force and effect as if executed by you. Where any Intellectual Property rights to which this clause 21 apply have been created jointly by you and any other person or persons, you shall, without prejudice to his or her obligations under this clause 21, use your best endeavours to procure that the other person or persons assign(s) to the Company and/or the Group the relevant interests in such rights.
21.5 You acknowledge that, save as provided in this Agreement, no further remuneration or compensation is or may become due to you in respect of the performance of their obligations under this clause.
21.6 You agree to waive any moral rights in the Intellectual Property to which you are now or may at any future time be entitled under the Copyright and Related Rights Act 2000 or any similar provision of law in any jurisdiction, including (but without limitation) the right to be identified, the right of integrity and the right against false attribution, and agrees not to institute, support, maintain or permit any action or claim to the effect that any treatment, exploitation or use of such work or other materials, infringe your moral rights.
21.7 You shall immediately on the date of termination deliver to the Company and/or the Group all materials in your possession or in your control relating to any Intellectual Property rights belonging to the Company and/or the Group (including rights falling within scope of this clause 21 which have not yet formally vested in the Company and/or the Group) which shall include (without limitation) all reports, studies, data, drawings, diagrams, charts, designs, records and computer software on whatever media together with all drafts and working papers relating to such materials.
21.8 "Intellectual Property" means any and all discoveries, concepts, ideas, inventions, formulae, trade secrets, devices, designs, models, methods, techniques, processes, specifications, tooling, improvements to existing technology whether or not written down or otherwise converted to tangible form, rights with respect to software, works of authorship, copyrighted and copyrightable works, mask works, rights in know-how and confidential information, database rights, trademarks and service marks, goodwill, domain names, technical and product information, patents, any rights equivalent or similar to any of the foregoing and any other proprietary or intellectual property rights now known or hereafter recognised, in each case: (i) anywhere in the world; (ii) whether unregistered or registered (including applications, rights to apply and rights to claim priority); (iii) including all divisionals, continuations, continuations-in-part, reissues, extensions, re-examinations and renewals; (iv) including rights to derivatives, improvements, modifications, enhancements, revisions, and releases to any of the foregoing; and (v) claims and causes of action arising out of or related to infringement, misappropriation or violation of any of the foregoing.
22.DIRECTORSHIPS
22.1 You undertake that, if you are appointed a director of the Company or any Group Company, you shall not during the continuance of this Agreement disqualify yourself from holding office as a director. If you are or become disqualified from being a director by reason of any order made by any competent court, the Company may terminate your employment summarily without compensation in accordance with the provisions of this Agreement.
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22.2 You shall not be entitled to any additional remuneration in respect of your directorship (if any) of the Company or any Group Company
23.Disciplinary Procedure
23.1 The Company requires a good standard of discipline and conduct from you together with satisfactory standards of work. Disciplinary action up to and including dismissal may take place if your conduct or standard of work falls below an acceptable level. Summary dismissal may take place where gross misconduct occurs. The disciplinary procedures do not apply to employees who have not completed probation. Full details of the Company's Disciplinary Procedure are contained in the Employee Handbook.
24.Grievance Procedure
24.1 The Company has a grievance procedure, applicable to all employees. The purpose of the grievance procedure is to resolve any work-related problem as quickly as possible. All grievances will be dealt with seriously and confidentially and you need not fear victimisation for making or being involved in a complaint. Full details of the Company's Grievance Procedure is contained in the Employee Handbook.
25.NOTICES
Any notice to be given under this Agreement shall be in writing. Notices may be served by either party by personal service or by recorded delivery or by registered post addressed to the other party or by leaving such notice at (in the case of the Company) its registered office for the time being and (in your case) your last known address and any notice given shall be deemed to have been served at the time at which the notice was personally served or if sent by recorded delivery at the time of delivery as recorded or if sent by first-class post on the second working day after posting or in the case of being left as appropriate at the registered office or last known address, the date on which it was so left.
26.RESTRICTIVE COVENANTS
26.1 You acknowledge and agree that:
26.1.1 The Group is in a unique and highly specialised business, which is international in scope with a large number of competitors;
26.1.2 The Company and Group possess a valuable body of Confidential Business Information and that your knowledge of that Confidential Business Information directly benefits you by enabling you to perform your duties;
26.1.3 During the course of your employment with the Company you are likely to develop close links with customers, clients, suppliers and other employees of the Company and the Group and to have access to Confidential Business Information;
26.1.4 The protection of Confidential Business Information, intellectual property, customer connections, supplier connections, goodwill and the stability of the workforce of the Company and its Group Companies are legitimate business interests requiring protection; and
26.1.5 The disclosure of any Confidential Business Information to any actual or potential competitor of the Company or any Group Company would place the Company at a serious competitive disadvantage and would cause immeasurable (financial and other) damage to the Company.
26.2 Without prejudice to your general duties or obligations under common law or statutory law, in order to protect the Company's legitimate business interests, you undertake to the Company that you shall not, both (i) during your employment with the Company and (ii) for the duration of the Restricted Period and within the Restricted Area either directly or indirectly without the prior written consent of the Company and/or the Group:
26.2.1 hold any Material Interest in any business which is or shall be wholly or substantially in competition with any of the Businesses, save that you may hold for investment up to 1% of any class of securities quoted or dealt in on a recognised investment exchange; and
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26.2.2 hold any Material Interest in any person, firm or company which requires or might reasonably be thought by the Company or any Group Company to require you to disclose or make use of any Confidential Business Information in order to properly discharge your duties or to further your interest in such person, firm or company;
26.2.3 accept, canvass or solicit the custom of or entice away (or try to entice away) from the Company or any Group Company, whether on your own behalf or on behalf of others, the custom or business for any Restricted Products or Restricted Services of any person who is or was a Customer of the Company or any Group Company at any time during the Relevant Period and in respect of whom you had access to Confidential Business Information or with whose custom or business you were personally concerned or employees reporting directly to you were personally concerned;
26.2.4 deal with or otherwise accept, in competition with the Company or any Group Company, the custom of, any person who was, during the Relevant Period, a customer or client of, or in the habit of dealing with, the Company or, as the case may be, any Group Company and in respect of whom you had access to Confidential Business Information or with whose custom or business you were personally concerned or employees reporting directly to you were personally concerned;
26.2.5 interfere or seek to interfere or take such steps as may interfere with the continuance of supplies to the Company or any Group Company (or the terms relating to such supplies) from any suppliers who have been supplying components, materials or services to the Company or any Group Company at any time during the Relevant Period and in respect of whom you had access or with whose supplies you were personally concerned or employees reporting directly to you were personally concerned;
26.2.6 canvass or solicit the services of or entice away (or try to entice away) from the Company or any Group Company or engage, whether on your own behalf or on behalf of others any person with whom you worked, or had managerial responsibility for, at any time during the Relevant Period, and who is or was at the Termination Date (i) employed or directly or indirectly engaged by the Company or any Group Company in an executive, sales, marketing, research or technical capacity; and (ii) whose departure from the Company or any Group Company would have a material adverse effect on the business (a Restricted Person); and
26.2.7 employ or engage or otherwise facilitate the employment or engagement of any Restricted Person whether or not such person would be in breach of contract as a result of such employment or engagement.
26.3 You agree that you will not, whether directly or indirectly:
26.3.1 after the Termination Date, use in connection with any business, any name that includes the name of the Company or any Group Company, or any colourable imitation of such names.
26.3.2 at any time during the Restricted Period, induce or seek to induce by any means involving the disclosure or use of Confidential Business Information, any Customer to cease dealing with the Company or any Group Company or to restrict or vary the terms upon which it deals with the Company or any Group Company;
26.3.3 at any time during the Restricted Period, represent yourself or permit yourself to be held out by any person, firm or company as being in any way connected with or interested in the business of the Company or any Group Company and that you shall take such steps as are necessary to comply with this obligation (including but not limited to amending your social media profile) provided that such steps are not inconsistent with your ongoing obligations under this Agreement; and
26.3.4 at any time during the Restricted Period, disclose to any person, firm or company or make use of any Confidential Business Information.
26.4 You acknowledge and agree that the restrictions in this clause are independent and severable and are fair and reasonable in all the circumstances. If any of the restrictions are adjudged by a court of competent jurisdiction to go beyond what is reasonable in all the circumstances for the protection of the legitimate interests of the Company or any Group Company but would be reasonable if any particular restriction or restrictions, or part of their wording, were deleted, such restrictions shall apply with such deletion as may be necessary to make them valid and effective.
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26.5 You agree that if, during the continuance in force of the restrictions set out in this clause you receive an offer of employment, you will immediately provide the prospective employer with a complete and accurate copy of the restrictions set out in this clause and shall tell the Company the identity of that person as soon as possible.
26.6 You acknowledge and agree that the restrictions set out in this clause are reasonable and go no further than is reasonably necessary to protect the legitimate business interests of the Company and any Group Company.
26.7 Nothing contained in this clause shall act to prevent you from using generic skills learnt while employed by the Company in any business or activity which is not in competition with the Company.
26.8 You have given the undertakings contained in this clause to the Company as trustee for itself and for each Group Company and will at the request and cost of the Company enter into direct undertakings with any Group Company which correspond to the undertakings in this clause, or which are less onerous only to the extent necessary (in the opinion of the Company or its legal advisers) to ensure that such undertakings are valid and enforceable.
26.9 Upon termination of your employment, the Company may require you to attend an interview which shall be conducted by a representative of the Company at which the Company's representative shall review with you the terms of this clause and the precise nature of your obligations to the Company under this clause.
26.10 For the avoidance of doubt, the period of any restrictive covenant under this clause shall be reduced by any period that you spend on Garden Leave immediately before termination of this Agreement.
26.11 If your employment is transferred to any firm, company, person or entity other than a Group Company (i.e. a New Employer) pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, you will, if required, enter into an agreement with the New Employer containing post-termination restrictions corresponding to those restrictions in this clause.
27.DATA PROTECTION
27.1 Details of how and why the Company processes your personal data are contained in the Employee Handbook and/or the Company's data privacy notice, which may be provided to you separately. You expressly acknowledge and agree that the terms of the data privacy notice do not form part of your terms and conditions of employment, however, you may be asked to acknowledge receipt of the data privacy notice.
28.VARIATION
28.1 In addition to any specific reservations referred to in this Agreement, the Company reserves the right to make reasonable changes to the terms and conditions of your employment from time to time. You will be notified in writing of any change as soon as possible and in any event within one month of the change.
29.GOVERNING LAW
This Agreement and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of Ireland and the parties to this Agreement hereby submit to the exclusive jurisdiction of the Irish Courts.
30.COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which, when executed, shall be an original and all the counterparts together shall constitute one and the same instrument.
31.GENERAL
31.1 This Agreement shall form the statement of your terms and conditions of employment in compliance with the provisions of the Terms of Employment (Information) Act 1994 – 2014.
31.2 This Agreement constitutes the entire and only legally binding agreement between the Parties relating to your employment by the Company or any Group Company. All previous agreements, understandings, assurances,
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statements, promises, warranties, representations or misrepresentations (whether written or oral) between the Parties are superseded by this Agreement.
31.3 Where, in connection with this Agreement you undertake any obligation in respect of any Group Company, you unconditionally and irrevocably acknowledge and agree that the Company is entering into this Agreement and accepting the benefit of such obligations not only for itself but also as agent and trustee for such other Group Company. For the purposes of this Agreement, and notwithstanding any of the other provisions of this Agreement, the Company will be entitled to carry out all or any of its obligations under this Agreement, whether as to payment of remuneration, deduction of amounts or otherwise, through any Group Company as it may from time to time determine and the Company may enforce the provisions of this Agreement either directly as a party to it or as an agent for and on behalf of any such Group Company.
31.4 No failure or delay by the Company in exercising any remedy, right, power or privilege under or in relation to this Agreement shall operate as a waiver of the same nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
31.5 No waiver by the Company of any of the requirements of this Agreement or of any of its rights under this Agreement shall have effect unless given in writing and signed by the Company. No waiver of any particular breach of the provisions of this Agreement shall operate as a waiver of any repetition of that breach.
31.6 If any provision of this Agreement shall be, or become, void or unenforceable for any reason within any jurisdiction, this shall affect neither the validity of that provision within any other jurisdiction nor any of the remaining provisions of this Agreement.
31.7 You agree that the Company may transfer, upon agreement, your employment from the Company to such other Group Company as the Company may determine and/or require you to execute a service agreement with that other company (provided that the terms of that agreement are no less favourable than those of this Agreement).
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SCHEDULE
DEFINITIONS
In this Agreement the following words and expressions shall have the following meanings:
1.Board means the board of directors for the time being of the Company and includes any person or committee duly authorised by the board of directors, or any nominee of a Group Company, or any majority or sole shareholder of the Company duly authorised to act on its behalf for the purposes of this Agreement (including any committee of the Board duly appointed by it);
2.Businesses means all and any trades or other commercial activities (including without limitation Restricted Products and/or Restricted Services) of the Company or any Group Company:
awith which you were concerned or involved to any material extent at any time during Relevant Period which the Company or any Group Company carries on with a view to profit; or
bwhich the Company or any Group Company, at the Termination Date, had determined to carry on with a view to profit in the immediate or foreseeable future and in relation to which you possess any Confidential Business Information as at the Termination Date;
CEO means the CEO of Teleflex Incorporated;
Companies Act means the Companies Act 2014 and all other statutes and statutory instruments or parts thereof which are to be read as one with or construed or read together as one with such statutes;
Confidential Business Information means all and any Corporate Information, Marketing Information, Technical Information and other information (whether or not recorded in documentary form or on computer disk or tape or howsoever) which the Company or any Group Company considers confidential or in respect of which it owes an obligation of confidentiality to any third party:
i.which you acquire at any time during your employment by the Company or you have acquired during your prior employment with the Company but which does not form part of your own general knowledge or stock in trade; and
ii.which is not in the public domain or readily ascertainable to persons not connected with the Company or any Group Company either at all or without a significant expenditure of labour, skill or money;
Corporate Information means all and any information (whether or not recorded in documentary form or on computer disk or tape or howsoever) relating to the business methods, corporate plans, management systems, finances, maturing new business opportunities or research and development products of the Company or any Group Company;
Customer means any person, firm or company with whom you had material or regular dealings at any time during the Relevant Period or which is, at the Termination Date, negotiating with the Company or any Group Company for the supply of any Restricted Products or the provision of any Restricted Services or to whom or which the Company or any Group Company, during the Relevant Period, supplied any Restricted Products or provided any Restricted Services;
Group means the Company and each Group Company;
Group Company means Teleflex Incorporated and each of its direct and indirect Subsidiaries from time to time (and for this purpose Subsidiary has the meaning given to it in section 7 of the Companies Act 2014);
Immediate Relative means in relation to you, any spouse, civil partner, children and the foresaid relatives by marriage;
Marketing Information means all and any information (whether or not recorded in documentary form or on computer disk or tape or howsoever) relating to the marketing, branding, or sales of any past, present or future product or service of the Company or any Group Company including without limitation sales targets and statistics, market share and pricing statistics, marketing surveys and plans, market research reports, sales techniques, price lists, discount structures, advertising and promotional material, the names, addresses, telephone numbers, contact names and identities of
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customers and potential customers of and suppliers and potential suppliers to the Company or any Group Company, the nature of their business operations, their requirements for any product or service sold to or purchased by the Company or any Group Company and all confidential aspects of their business relationship with the Company or any Group Company;
Material Interest means:
i.the holding of any position as director, officer, employee, consultant, partner, principal or agent; or
ii.the direct or indirect control or ownership (whether jointly or alone) of any shares (or any voting rights attached to them) or debentures save for the ownership for investment purposes only of not more than 3% of the issued ordinary shares of any company whose shares are listed or dealt in on any recognised stock exchange or securities market; or
iii.the direct or indirect provision of any financial assistance; or
iv.property interests, whether leasehold or freehold.
month means calendar month and "months" and "monthly" shall be construed accordingly;
officer means a director or secretary of a company;
Relevant Period means the 12 months prior to, and including, the Termination Date;
Restricted Area means anywhere within the island of Ireland;
Restricted Period means the period of nine months from the Termination Date;
Restricted Products means all and any products of a kind which are or shall be dealt in, produced, marketed or sold by the Company or any Group Company in the ordinary course of the Businesses, the sale, production or marketing of which you were involved to any material extent at any time during the Relevant Period;
Restricted Services means all and any services of a kind which are or shall be provided by the Company or any Group Company in the ordinary course of the Businesses, the supply of which you were involved to any material extent at any time during the Relevant Period;
Technical Information means all and any trade secrets, secret formula, processes, inventions, designs, know-how, discoveries, intellectual property, technical specifications and other technical information (whether or not recorded in documentary form or on computer disk or tape or howsoever) relating to the creation, production or supply of any past, present or future product or service of the Company or any Group Company;
Teleflex Incorporated Stock Plan means the Teleflex Incorporated 2014 Stock Incentive Plan or any successor plan.
Term means the period of your employment;
Termination Date means the date on which your employment under this Agreement shall terminate for whatever reason, and derivative expressions shall be construed accordingly;
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IN WITNESS whereof the parties have executed this Agreement on the date first written above.
TELEFLEX MEDICAL EUROPE LIMITED
By:/s/ Monika Vikander-Hegarty Name: Monika Vikander-HegartyTitle: Director
/s/ James Winters JAMES WINTERS
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Exhibit 10.4
SENIOR EXECUTIVE OFFICER SEVERANCE AGREEMENT
THIS SENIOR EXECUTIVE OFFICER SEVERANCE AGREEMENT is made as of March 24, 2020, between TELEFLEX MEDICAL EUROPE LIMITED with a registered address of IDA Business & Technology Park, Garrycastle, Athlone, Co. Westmeath, Ireland (the “Company”) and JAMES WINTERS of [ADDRESS OMITTED] (“Executive”).
BACKGROUND
A. Executive is employed by the Company as Corporate Vice President, Manufacturing & Supply Chain.
B. The purpose of this Agreement is to provide for certain severance compensation and benefits to be paid or provided to Executive in the event of the termination of his employment under circumstances specified herein and to provide also for certain commitments by Executive respecting the Company and Group.
TERMS
THE PARTIES, in consideration of the mutual covenants hereinafter set forth, and intending to be legally bound hereby, agree as follows:
1.Definitions. The following terms used in this Agreement with initial capital letters have the respective meanings specified therefor in this Section.
“Affiliate” of any Person means any other Person that controls, is controlled by or is under common control with the first mentioned Person.
“Agreement” preceded by the word “this” means this Senior Executive Officer Severance Agreement, as amended at any relevant time.
“Annual Incentive Plan” means the Management Incentive Plan (MIP) or Executive Incentive Plan (EIP) which are offered by the Company providing for the payment of annual bonuses to certain employees of the Company, including Executive, as such Plans may be amended from time to time or, if such Plans shall be discontinued, any similar Plan or Plans in effect at any relevant time.
“Base Salary” of Executive means the annualized base rate of salary paid to Executive as such may be increased from time to time.
“Board” means the Board of Directors of the Company.
“Business” means any and all trades or other commercial activities (including without limitation Restricted Products and/or Restricted Services) of the Company or any Group Company (a) with which Executive was concerned or involved to any material extent at any time during Relevant Period which the Company or any Group Company carries on with a view to profit; or (b) which the Company or any Group Company, at the Termination Date, had determined to carry on with a view to profit in the immediate or foreseeable future and in relation to which Executive possesses any Confidential Business Information as at the Termination Date.
“Cause” means (a) misappropriation of funds, (b) charge or conviction of any criminal offence (other than an offence under the Road Traffic Acts for which a penalty of imprisonment is not imposed), (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 or (d) refusal to comply with clause 5 (travel requirement) of the Contract of Employment.
“Change of Control Severance Agreement” means the Executive Severance Agreement relating to termination of employment of Executive after the occurrence of a Change of Control of the Company (defined in such Agreement).
“Confidential Information” has the meaning specified in Section 7.
“Contract of Employment” shall mean the contract of employment entered into between the Company and Executive, dated March 24, 2020, as may be amended from time to time.
“Customer” means any person, firm or company with whom Executive had material or regular dealings at any time during the Relevant Period or which is, at the Termination Date, negotiating with the Company or any Group Company for the supply of any Restricted Products or the provision of any Restricted Services or to whom or which the Company or any Group Company, during the Relevant Period, supplied any Restricted Products or provided any Restricted Services.
“Employment” means substantially full-time employment of Executive by the Company or any of its Affiliates.
“Good Reason” means the occurrence of one or more of the following:
a.A change of the principal office or work place assigned to Executive to a location more than 25 miles distant from its location immediately prior to such change.
b.A material reduction by the Company of the executive title, duties, responsibilities, authority, status, reporting relationship or executive position of Executive; provided that if the Company sells or otherwise disposes of any part of its business or assets or otherwise diminishes or changes the character of its business, the change in the magnitude or character of the Company’s business
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resulting therefrom will not itself be deemed to be a reduction of Executive’s responsibilities, authority or status within the meaning of this paragraph (b).
c.A reduction of Executive’s Base Salary or a material reduction in the Executive’s annual target incentive opportunity under the Annual Incentive Plan.
“Group” means the Company, each Group Company and all Affiliates.
“Group Company” means Teleflex Incorporated and each of its director and indirect Subsidiaries from time to time (and for this purpose the term “Subsidiary” has the meaning given to it in section 7 of the Companies Act 2014).
“Health Care Continuation Period” means the period commencing on the Termination Date and ending on the earlier of (i) the last day of the Severance Compensation Period or (ii) the first date on which Executive is eligible to participate in a health care plan maintained by another employer.
“Insurance Benefits Period” means the period commencing on the Termination Date and ending on the earlier of (i) the last day of the Severance Compensation Period or (ii) the first date on which Executive is eligible to participate in a life and / or accident insurance plan maintained by another employer.
“Material Interest” means
a.the holding of any position as director, officer, employee, consultant, partner, principal or agent;
b.the direct or indirect control or ownership (whether jointly or alone) of any shares (or any voting rights attached to them) or debentures save for the ownership for investment purposes only of not more than 3% of the issued ordinary shares of any company whose shares are listed or dealt in on any recognised stock exchange or securities market;
c.the direct or indirect provision of any financial assistance; or
d.property interests, whether leasehold or freehold.
“Notice of Termination” means notice of termination under the Contract of Employment.
“Performance Period” applicable to any compensation payable (in cash or other property) under any Plan, the amount or value of which is determined by reference to the performance of participants or the Company or the fulfillment of specified conditions or goals, means the period of time over which such performance is measured or the period of time in which such conditions or performance goals must be fulfilled.
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“Person” means an individual, a corporation or other entity or a government or governmental agency or institution.
“Plan” means a plan of the Company or Group for the payment of compensation or provision of benefits to employees in which plan Executive is or was, at all times relevant to the provisions of this Agreement, a participant or eligible to participate.
“Prorated Amount” has the meaning specified in Section 3(c).
“Release” has the meaning specified in Section 6.
“Relevant Period” means the 12 months prior to, and including, the Termination Date.
“Restricted Period” means the period of 12 months after the Termination Date.
“Restricted Area” means any area in the world where the Business was conducted at any time during the Relevant Period.
“Restricted Products” means all and any products of a kind which are or shall be dealt in, produced, marketed or sold by the Company or any Group Company in the ordinary course of the Businesses, the sale, production or marketing of which Executive was involved to any material extent at any time during the Relevant Period.
“Restricted Services” means all and any services of a kind which are or shall be provided by the Company or any Group Company in the ordinary course of the Businesses, the supply of which Executive was involved to any material extent at any time during the Relevant Period.
“Severance Compensation Period” means the period commencing on the Termination Date and continuing for a period equal to the sum of three weeks for each completed year of Employment; provided, however, that in no event shall the Severance Compensation Period be (a) less than nine months or (b) greater than 12 months; provided further that the Severance Compensation Period shall be reduced by a term equal to the notice period provided for under the Notice of Termination.
“Termination Date” means the date specified in a Notice of Termination, as may be amended by the Company, which date shall be the date Executive’s Termination of Employment occurs.
“Termination of Employment” means a cessation by the Company of Executive’s Employment for any reason, other than a cessation occurring (i) by reason of Executive's death or (ii) under circumstances which would entitle Executive to receive compensation and benefits pursuant to the Change of Control Severance Agreement, or (iii) for Cause.
“Year of Termination” means the Year in which the Executive’s Termination Date occurs.
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“Year” means a fiscal year of the Company.
2.Continued Employment of Executive. The parties acknowledge that Executive’s employment by the Company is terminable on notice, or by payment of salary in lieu of notice, and subject to such terms and conditions as contained in the Contract of Employment. Nothing in this Agreement shall be construed as giving Executive any right to continue in the employ of the Company.
3.Compensation upon Termination of Employment. Subject to and conditional upon Executive’s strict compliance with the terms of this Agreement, upon Termination of Employment (i) by the Company other than for Cause, or (ii) by Executive within 3 months after the occurrence of a Good Reason, Executive will receive from the Company the following payments and benefits:
i.Cash Bonuses for Years Preceding the Year of Termination. If any cash bonus pursuant to an Annual Incentive Plan in respect of a Performance Period which ended before the Year of Termination shall not have been paid to Executive on or before the Termination Date, the Company will pay Executive such bonus in the amount of Executive’s award earned for the Performance Period in the form of a single lump sum cash payment on the later of the 15th day following the Termination Date or the date that is 2-1/2 months following the end of the Performance Period. Save as provided for in Section 3(c), no other bonus payment shall be payable.
ii.Continuation of Base Salary. The Company will continue to pay Executive Base Salary as in effect immediately prior to the Termination Date for the duration of the applicable Severance Compensation Period (“Base Salary Continuation”) in accordance with the Company’s normal payroll schedule and payroll practices in effect from time to time, subject to all applicable withholdings and deductions provided, however, that if the Termination Date was preceded by a period of illness leave, then the Base Salary Continuation shall be payable by reference to Executive’s Base Salary as in effect immediately prior to the Executive’s illness leave. In the event that Executive is made redundant, then any statutory redundancy payment to which Executive is entitled shall be offset against the Base Salary Continuation payment calculated as of the Termination Date and Executive shall not be entitled to double recovery in respect of any statutory redundancy payment.
iii.Payment of Annual Incentive Plan Award for Performance Period Not Completed Before the Termination Date. If Notice of Termination of Executive’s employment is issued by the Company before the last day, but after completion of at least six months, of a Performance Period under the Annual Incentive Plan, the Company will pay Executive the Prorated Amount of Executive’s award under the Annual Incentive Plan for that Performance Period. The amount of the award, from which the Prorated Amount is derived, shall be determined based on the degree to which each performance goal on which such award is based has been achieved at the end of the Performance Period (provided that any individual performance component shall be equal to the target award amount for such component). The “Prorated Amount” of the award
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means an amount equal to the portion of the award which bears the same ratio to the amount of the award as the portion of such Performance Period expired immediately before the date on which Notice of Termination of the Executive’s employment is issued by the Company bears to the entire period of such Performance Period. The amount to which Executive is entitled under this Section 3(c) shall be paid in the form of a single lump sum cash payment on the date that is 2-1/2 months following the end of the Performance Period.
iv.Outplacement. The Company shall reimburse Executive for expenses incurred for outplacement services during the period from the date on which Notice of Termination is issued to the expiration of the Severance Compensation Period, up to a gross maximum aggregate amount of €18,000 inclusive of VAT and outlay, which services shall be provided by an outplacement agency selected by Executive. The Company shall reimburse Executive within 15 days following the date on which the Company receives proof of payment of such expense, which proof must be submitted no later than December 1st of the calendar year after the calendar year in which the expense was incurred and although addressed to Executive the amount will be payable by the Company. Notwithstanding the foregoing, Executive shall only be entitled to reimbursement for those outplacement service costs incurred by Executive on or prior to the last day of the eighteenth month following the Termination Date. Any such payment may be subject to statutory deductions.
v.Health Care Coverage. Subject to statutory deductions, during the Health Care Continuation Period, the Company will provide health care coverage under the Company’s then-current health care Plan for Executive and Executive’s spouse and eligible dependents on the same basis as if Executive had continued to be employed during that period. If not permitted under the relevant Plan, and subject to statutory deductions, the Company shall pay an amount equivalent to the cost to it of providing cover for the Executive and Executive’s spouse and eligible dependents on the same basis as if the Executive had continued to be a member of the Plan during the Health Care Continuation Period.
vi.Life and Accident Insurance. Subject to statutory deductions and the terms, limitations and exclusions of the Plan or Plans for provision of life and accident insurance and the Company’s related policies of group insurance, during the Insurance Benefits Period the Company will provide life and accident insurance coverage for Executive comparable to the life and accident insurance coverage which Executive last elected to receive as an employee under the applicable Plan for such benefits, subject to modifications from time to time of the coverage available under such Plan or related insurance policies which are applicable generally to global executive officers. The cost of providing such insurance will be borne by the Company and Executive in accordance with the Company’s policy then in effect for employee participation in premiums, on substantially the same terms as would be applicable to a global executive officer. The Company shall pay its share of such premiums to the applicable insurance carrier(s) on the due date(s) established by such carrier(s), but in no event later than the last day of the calendar year in which such due date(s) occurs. If not permitted under the relevant Plan, and subject to statutory deductions, the Company shall pay an amount equivalent to the cost to it of providing cover for the Executive and Executive’s spouse and eligible dependents on the same basis as if
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the Executive had continued to be a member of the Plan during the Health Care Continuation Period.
vii.Taxable Benefits. The Company shall deduct all taxes and levies from any emoluments, payments or benefits provided under this Agreement (including PAYE, USC, employee’s PRSI, health contributions or any other taxes or levies which the Company and / or Group is obliged to deduct from emoluments, payments or benefits provided to Executive, but excluding employer’s PRSI). In the event that the amounts deducted are insufficient to discharge the Company’s liability, Executive hereby agrees to indemnify the Company and / or Group for all taxes, levies, interest, penalties, costs and expenses arising therefrom. The Company shall pay all interest, penalties, costs and expenses incurred due to its own negligent failure to make required deductions from Executive’s compensation. The amount payable by Executive under this Section will be such amount as will leave the Company and / or Group in the same position (after settling all taxes, levies, interest, penalties, costs and expenses), as it would have been if the correct deductions had been made from all emoluments, payments or benefits provided under this Agreement at the time such deductions were due.
4.Deductions and Taxes. For the avoidance of doubt, all amounts payable or benefits provided by the Company pursuant to this Agreement are expressed in gross amounts and shall be subject to all applicable statutory deductions required by law as well as being reduced by any cost to be borne by the Executive. Accordingly, any such monies shall be subject to and paid net of (i) taxes withheld or deducted by the Company in accordance with the requirements of law and (ii) deductions for the portion of the cost of certain benefits to be borne by Executive. The Company reserves absolute discretion to determine the manner of which tax should be applied to any such amounts or benefits.
5.Compensation and Benefits Pursuant to Other Agreements and Plans. Nothing in this Agreement is intended to diminish or otherwise affect Executive’s right to receive from the Company all compensation payable to Executive by the Company in respect of her Employment prior to the Termination Date pursuant to any agreement with the Company (other than this Agreement) or any Plan.
6.Executive’s General Release and Resignation from Board of Directors. As a condition to the obligations of the Company to pay severance compensation and provide benefits pursuant to Section 3, the Company shall have received from Executive on the Termination Date a written resignation from the Board and as an officer and director of the Company, the Group, all of its Affiliates and a general release up to the Termination Date in substantially the form of Exhibit A and updated as necessary to reflect any changes in statutory references, relevant benefits plans as identified or such other changes as required, executed by Executive (the “Release”), and Executive shall not thereafter seek to withdraw or in any way challenge the effect or scope of the Release. If Executive fails to resign from the Board by the Company or any Affiliate by the Termination Date or fails to execute, or if Executive seeks to withdraw from the Release or to in any way challenge the effect or scope, or acts in any way to suggest he is no longer bound by the Release, no payments or benefits shall thereafter be made or provided to Executive pursuant to this Agreement, and Executive may be required to reimburse to the
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Company any payments or benefits received by Executive pursuant to this Agreement, but Executive’s obligations pursuant to this Agreement and Sections 7 and 8 in particular shall continue in force.
7.Confidential Information. Executive acknowledges that, by reason of Executive’s employment by and service to the Company, Executive has had and will continue to have access to confidential information of the Company, the Group and its Affiliates, including information and knowledge pertaining to products and services offered, innovations, designs, ideas, technology, manufacturing and assembly methods, procedures, work instructions, plans, trade secrets, proprietary information, distribution and sales methods and systems, sales and profit figures, customer and client lists, and relationships between the Company, the Group and other distributors, customers, clients, suppliers and others who have business dealings with the Company, the Group, and its Affiliates (“Confidential Information”). Executive acknowledges that such Confidential Information is a valuable and unique asset of the Company, and Group and Executive covenants that (except in connection with the good faith performance of her duties while employed by the Company) Executive will not, either during or after Executive’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 Executive or except as may be required by law or in a judicial or administrative proceedings. In addition to the undertakings given by Executive in this Section 7, Executive agrees that he will continue to be bound by the confidentiality provisions in clause 20 of the Contract of Employment.
8.Restrictive Covenants.
a.Executive acknowledges and agrees that:
i.The Group is in a unique and highly specialised business, which is international in scope with a large number of competitors;
ii.The Company and Group possess a valuable body of Confidential Information and that Executive’s knowledge of that Confidential Information directly benefits Executive by enabling Executive to perform his duties;
iii.During the course of Executive’s employment with the Company, Executive is likely to develop close links with customers, clients, suppliers and other employees of the Company and the Group and to have access to Confidential Information;
iv.The protection of Confidential Information, intellectual property, customer connections, supplier connections, goodwill and the stability of the workforce of the Company and its Group Companies are legitimate business interests requiring protection; and
v.The disclosure of any Confidential Information to any actual or potential competitor of the Company or any Group Company would place the Company at a serious competitive disadvantage and would cause immeasurable (financial and other) damage to the Company.
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b.Without prejudice to Executive’s general duties or obligations under common law or statutory law, in order to protect the Company's legitimate business interests, Executive undertakes to the Company that he shall not, both (i) during his employment with the Company and (ii) for the duration of the Restricted Period and within the Restricted Area either directly or indirectly without the prior written consent of the Company and/or the Group:
i.hold any Material Interest in any business which is or shall be wholly or substantially in competition with any of the Businesses, save that Executive may hold for investment: (i) up to 3% of any class of securities quoted or dealt in on a recognised investment exchange; and (ii) up to 10% of any class of securities not so quoted or dealt;
ii.hold any Material Interest in any person, firm or company which requires or might reasonably be thought by the Company or any Group Company to require Executive to disclose or make use of any Confidential Information in order to properly discharge Executive’s duties or to further Executive’s interest in such person, firm or company;
iii.accept, canvass or solicit the custom of or entice away (or try to entice away) from the Company or any Group Company, whether on Executive’s own behalf or on behalf of others, the custom or business for any Restricted Products or Restricted Services of any person who is or was a Customer of the Company or any Group Company at any time during the Relevant Period and in respect of whom Executive had access to Confidential Information or with whose custom or business Executive was personally concerned or employees reporting directly to Executive were personally concerned;
iv.deal with or otherwise accept, in competition with the Company or any Group Company, the custom of, any person who was, during the Relevant Period, a customer or client of, or in the habit of dealing with, the Company or, as the case may be, any Group Company and in respect of whom Executive had access to Confidential Information or with whose custom or business Executive was personally concerned or employees reporting directly to Executive were personally concerned;
v.interfere or seek to interfere or take such steps as may interfere with the continuance of supplies to the Company or any Group Company (or the terms relating to such supplies) from any suppliers who have been supplying components, materials or services to the Company or any Group Company at any time during the Relevant Period and in respect of whom Executive had access or with whose supplies Executive was personally concerned or employees reporting directly to Executive were personally concerned;
vi.canvass or solicit the services of or entice away (or try to entice away) from the Company or any Group Company or engage, whether on Executive’s own behalf or on behalf of others any person with whom Executive worked, or had managerial responsibility for, at any time during the Relevant Period, and who is or was at the Termination Date (i) employed or directly or indirectly engaged by the Company or any Group Company in an executive, sales, marketing, research or technical capacity; and (ii) whose departure from the Company or any Group Company would have a material adverse effect on the business (a Restricted Person); or
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vii.employ or engage or otherwise facilitate the employment or engagement of any Restricted Person whether or not such person would be in breach of contract as a result of such employment or engagement.
c.Executive agrees that he will not, whether directly or indirectly:
i.after the Termination Date, use in connection with any business, any name that includes the name of the Company or any Group Company, or any colourable imitation of such names;
ii.at any time during the Restricted Period, induce or seek to induce by any means involving the disclosure or use of Confidential Information, any Customer to cease dealing with the Company or any Group Company or to restrict or vary the terms upon which it deals with the Company or any Group Company;
iii.at any time during the Restricted Period, represent himself or permit himself to be held out by any person, firm or company as being in any way connected with or interested in the business of the Company or any Group Company and that Executive shall take such steps as are necessary to comply with this obligation (including but not limited to amending Executive’s social media profile) provided that such steps are not inconsistent with Executive’s ongoing obligations under this Agreement; or
iv.at any time during the Restricted Period, disclose to any person, firm or company or make use of any Confidential Information.
d.Executive acknowledges and agrees that the restrictions in this clause are independent and severable and are fair and reasonable in all the circumstances. If any of the restrictions are adjudged by a court of competent jurisdiction to go beyond what is reasonable in all the circumstances for the protection of the legitimate interests of the Company or any Group Company but would be reasonable if any particular restriction or restrictions, or part of their wording, were deleted, such restrictions shall apply with such deletion as may be necessary to make them valid and effective.
e.Executive agrees that if, during the continuance in force of the restrictions set out in this clause Executive receives an offer of employment, Executive will immediately provide the prospective employer with a complete and accurate copy of the restrictions set out in this clause and shall tell the Company the identity of that person as soon as possible.
f.Executive acknowledges and agrees that the restrictions set out in this clause are reasonable and go no further than is reasonably necessary to protect the legitimate business interests of the Company and any Group Company.
g.Nothing contained in this clause shall act to prevent Executive from using generic skills learned while employed by the Company in any business or activity which is not in competition with the Company.
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h.Executive has given the undertakings contained in this clause to the Company as trustee for itself and for each Group Company and will at the request and cost of the Company enter into direct undertakings with any Group Company which correspond to the undertakings in this clause, or which are less onerous only to the extent necessary (in the opinion of the Company or its legal advisers) to ensure that such undertakings are valid and enforceable.
i.Upon termination of Executive’s employment, the Company may require Executive to attend an interview which shall be conducted by a representative of the Company at which the Company's representative shall review with Executive the terms of this clause and the precise nature of Executive’s obligations to the Company under this clause.
j.For the avoidance of doubt, the period of any restrictive covenant under this clause shall be reduced by any period that Executive spends on Garden Leave immediately before termination of this Agreement.
k.If Executive’s employment is transferred to any firm, company, person or entity other than a Group Company (i.e. a New Employer) pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, Executive will, if required, enter into an agreement with the New Employer containing post-termination restrictions corresponding to those restrictions in this clause.
l.Executive acknowledges that he is subject to a separate but identical restriction in the Contract of Employment, which shall run in parallel with the restriction contained in this Agreement and accepts that in the event that the restriction contained in this Agreement does not apply to him, or is deemed by a court of competent jurisdiction not to apply to him, that the restrictions contained in the Contract of Employment shall continue to apply.
9.Return of Company and Group Property. Upon a request by the Company following the issuance of Notice of Termination and, in any event, at the Termination Date, Executive will deliver to the person designated by the Company all originals and copies of all documents, information, and other property of the Company and / or Group in Executive’s possession, under Executive’s control, or to which Executive may have access. Executive will not reproduce or appropriate for Executive’s own use, or for the use of others, any Confidential Information.
10.Cooperation. Upon and following receipt of Notice of Termination, and upon and following the Termination Date, Executive shall reasonably cooperate with the Company, and / or the Group, and their officers, employees, agents, Affiliates and lawyers in the defense or prosecution of any lawsuit, dispute, investigation or other legal proceedings or any preparation for any such disputes or proceedings that may be anticipated or threatened (“Proceedings”). Executive shall reasonably cooperate with the Company, and / or the Group, and their officers, employees, agents, Affiliates and attorneys on any other matter (“Matters”) related to Company and/or Group business (specifically to include Teleflex Medical Incorporated and Arrow International, Inc. business) during the period in which Executive is employed by the Company. Executive shall reasonably cooperate with the Company, and / or Group and their, officers,
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employees, agents, affiliates and lawyers in responding to any form of media inquiry or in making any form of public comment related to the Executive’s employment, including, but not limited to, the Executive’s separation from the Company. Such cooperation shall include providing true and accurate information or documents concerning, or affidavits or testimony about, all or any matters at issue in any Proceedings/Matters as shall from time to time be reasonably requested by the Company and / or Group, and shall be within Executive’s knowledge. Such cooperation shall be provided by Executive without remuneration, but Executive shall be entitled to reimbursement for all reasonable vouched and appropriate expenses Executive incurs in so cooperating, including (by way of example not by way of limitation) reasonable airplane fares, hotel accommodations, meal charges and other similar expenses to attend Proceedings/Matters outside of the island of Ireland. In the event Executive is made aware of any issue or matter related to the Company and / or Group, is asked by a third party to provide information regarding the Company and / or Group, or is called other than by the Company as a witness to testify in any matter related to the Company and / or Group, Executive will notify the Company immediately in order to give the Company a reasonable opportunity to respond and / or participate in such Proceeding/Matter, unless Executive is requested or required not to do so by law enforcement, or any other governmental agency or authority.
11.Equitable and Other Relief; Consent to Jurisdiction of Irish Courts.
viii.Executive acknowledges that the restrictions contained in this Agreement are reasonable and necessary to protect the legitimate interests of the Company, the Group 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 these restrictions will result in irreparable injury to the Company and / or Group. Executive represents and acknowledges that (i) Executive has been advised by the Company to consult Executive’s own legal counsel in respect of this Agreement and (ii) Executive has had full opportunity, prior to execution of this Agreement, to review thoroughly this Agreement with Executive’s counsel.
ix.Executive agrees that the Company and / or Group 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 this Agreement, which rights shall be cumulative and in addition to any other rights or remedies to which the Company and / or Group may be entitled under applicable law. Without limiting the foregoing, Executive also agrees that payment of the compensation and benefits payable under Section 3 may be automatically ceased in the event of a breach of the covenants of Sections 7 or 8 in particular.
12.No Obligation to Mitigate Company’s Obligations. Executive will 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, except to the extent provided in Subsections 3(f) and 3(g).
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13.Deductions or Set-Offs. The Company reserves the right to make deductions in respect of all sums from time to time owed by Executive to the Company or any Affiliate, from Executive’s pay, bonus, allowances, expenses, or from any amounts which may be due to Executive by the Company pursuant to this Agreement. By Executive agreeing to the terms and conditions set out in this letter, Executive consents to the deduction of such sums.
14.Notices. Save where otherwise required by law, all notices and other communications given pursuant to or in connection with this Agreement shall be in writing and delivered (which may be by telefax or other electronic transmission) to a party at the following address, or to such other address as such party may hereafter specify by notice to the other party:
If to the Company, to:
Teleflex Medical Europe Ltd.
IDA Business & Technology Park
Garrycastle
Athlone
Co. Westmeath
Ireland
Attention: General Counsel
And copy to:
Teleflex Incorporated
550 E. Swedesford Rd.
Suite 400
Wayne, PA 19087
Attention: General Counsel
If to Executive, to:
James Winters
[ADDRESS OMITTED]
15.Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of Ireland and the courts of Ireland shall have exclusive jurisdiction to deal with all disputes arising from or touching upon this Agreement.
16.Parties in Interest. This Agreement, including specifically the covenants of Sections 8 and 9, will be binding upon and inure to the benefit of the parties and their respective heirs, successors and assigns.
17.Entire Agreement. This Agreement and the Change of Control Severance Agreement contain the entire agreement between the parties with respect to the right of
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Executive to receive severance compensation upon the termination of her Employment, and such Agreements supersede any prior agreements or understandings between the parties relating to the subject matter of the Change of Control Severance Agreement or this Agreement. Where Executive receives any benefit or payment provided for under this Agreement, he shall not be entitled to any benefit under the Change of Control Severance Agreement and vice versa. Under no circumstances may he be entitled to receive payment under both agreements.
18.Amendment or Modification. No amendment or modification of or supplement to this Agreement will be effective unless it is in writing and duly executed by the party to be charged thereunder.
19.Construction. The following principles of construction will apply to this Agreement:
x.Unless otherwise expressly stated in connection therewith, a reference in this Agreement to a “Section,” “Exhibit” or “party” refers to a Section of, or an Exhibit or a party to, this Agreement.
xi.The word “including” means “including without limitation.”
20.Headings and Titles. The headings and titles of Sections and the like in this Agreement are inserted for convenience of reference only, form no part of this Agreement and shall not be considered for purposes of interpreting or construing any provision hereof.
[Remainder of this page intentionally left blank]
EXECUTED as of the date first above written
TELEFLEX MEDICAL EUROPE LTD.
By: /s/ Monika Vikander-Hegarty
Name: Monika Vikander-Hegarty
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Title: Director
EXECUTIVE:
/s/ James Winters
James Winters
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EXHIBIT A
GENERAL RELEASE
1. I, James Winters, for and in consideration of certain payments to be made and the benefits to be provided to me under the Senior Executive Officer Severance Agreement, dated as of March ___, 2020 (the “Agreement”) between me and TELEFLEX MEDICAL EUROPE LIMITED (the “Company”) and conditioned upon such payments and provisions, do hereby REMISE, RELEASE, AND FOREVER DISCHARGE the Company, the Group 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, the Group 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 action, 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 local law, including any claims and for the avoidance of doubt, I waive and compromise any claim I may have against the Company or the Group arising under contract (including any entitlement to bonus or expenses), common law, equity, tort (including any claim for personal injury and/or defamation), statute, statutory instrument or any treaty, regulation or directive of the European Union, including but not limited to claims under the Adoptive Leave Acts 1995 and 2005, the Carer's Leave Act 2001, the Criminal Justice Act 2011, the Data Protection Act 2018, the Employment Equality Acts 1998 to 2015, the Employment (Miscellaneous Provisions) Act 2018, the Employment Permit Acts 2003 to 2014, the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 to 2014, the Freedom of Information Act 2014, the Industrial Relations Acts 1946 to 2015, the Maternity Protection Acts 1994 and 2004, the Minimum Notice and Terms of Employment Acts 1973 to 2005, the National Minimum Wage Acts 2000 and 2015, the Organisation of Working Time Act 1997, the Paternity Leave and Benefit Act 2016, the Parental Leave Acts 1998 to 2019, the Payment of Wages Act 1991, the Pensions Acts 1990 to 2015, the Protection of Employees (Fixed-Term Work) Act 2003, the Protection of Employees (Part Time Work) Act 2001, the Protection of Employment Acts 1977 to 2014, the Protection of Employees (Temporary Agency Work) Act 2012, the Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007, the Protection of Young Persons (Employment) Act
1996, the Protected Disclosures Act 2014, the Redundancy Payments Acts 1967 to 2014, the Safety, Health and Welfare at Work Acts 2005 to 2014, the Terms of Employment (Information) Acts 1994 to 2014, the Unfair Dismissals Acts 1977 to 2015, the Workplace Relations Act 2015, and all other legislation relating to employment and its termination, the common law or otherwise all as amended, 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 the Company and / or Group plans in which I participated and under which I have accrued and become entitled to a benefit (including indemnification and / or reimbursement to the extent provided under the Company’s Certificate of Incorporation, bylaws or applicable insurance policies) based on my actual service with the Company other than under any Company separation or severance plan or programs.
Finally, I waive and compromise any claim to take a personal injury claim against the Company, the Group, any director, member or employee.
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 ___________________, 2___. I also hereby agree and recognize that I have resigned from my position as a member of the Board of Directors of the Company, the Group as well as its subsidiaries and affiliates, on ___________________, 2___. 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.
4. I hereby agree and acknowledge that the payments and benefits provided to me 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 law, 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 or as directed by the Company. 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 income tax treatment and 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 solicitor, that the Company have offered to make a contribution to the costs incurred in taking such legal advice, that I have received the independent legal advice of [insert name of solicitor] and that I understand its terms and effects and, in particular, its effect on my ability to pursue my rights to bring a claim or claims before the District Court, Circuit Court, High Court, Court of Appeal, Supreme Court, the Workplace Relations Commission, the Labour Court or any other court or tribunal against the Company or any Group Company and/or any of their shareholders, directors or employees in respect of my employment and/or the termination of my employment. 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. I further certify that I have entered into this Agreement without any coercion of any description.
7. I hereby further acknowledge that the terms of Sections 7 and 8 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. I further acknowledge that the payment due to me during the Severance Compensation Period are strictly subject to my compliance (to the reasonable satisfaction of the Company) with the terms of this Agreement, but in particular Sections 7 and 8.
8. This Release may be executed in one or more counterparts, including by facsimile signature, each of which shall be deemed to be an original, but all of which shall be considered one and the same instrument.
Intending to be legally bound hereby, the Company and I execute the foregoing Release as a Deed this ______ day of _______, 20__.
PRESENT when the Common Seal of
TELEFLEX MEDICAL EUROPE LIMITED.
was affixed hereto:
________________________________
Director
________________________________
Director / Company Secretary
SIGNED and DELIVERED by James Winters ______________________ in the presence of:
Witness signature: ______________________
Witness name : ______________________
Witness address: ______________________
Exhibit 10.5
EXECUTIVE CHANGE IN CONTROL AGREEMENT
This Executive Change In Control Agreement made as of March 24, 2020, by and between Teleflex Incorporated (the “Company”) and James Winters (“Employee”).
BACKGROUND
A.Employee is employed as an executive of Teleflex Medical Europe Limited, a wholly-owned subsidiary of the Company.
B.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 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.
C.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 is terminated without Cause, upon or after a Change of Control;
AGREEMENT
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 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 delivery of a Notice of Termination to Employee.
“Base Salary Continuation Period” shall mean the 18-month period commencing on the day after the date on which Notice of Termination is given.
“Benefit Period” shall mean the period beginning on the date on which Notice of Termination is issued and ending on the first to occur of (a) the 18-month anniversary of the date on which Notice of Termination issued 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.
“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.
“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.
“Contract of Employment” shall mean the contract of employment entered into between the Teleflex Medical Europe Limited and Employee, dated as of March 24, 2020, as may be amended from time to time.
“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, 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 written notice of Good Reason to the Company and the Company shall not have fully corrected the situation within 10 days after notice of such Good Reason:
i.any failure of the Company to comply with and satisfy any of the material terms of this Agreement;
ii.any material reduction by the Company of the title, duties, job responsibilities, reporting relationship or position of Employee;
iii.any material reduction in Employee’s Base Salary; or
iv.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.
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“Target Bonus” shall mean the sum of the Target Amounts (each a “Component Target Amount”) which would be payable in the year immediately 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 specified in a Notice of Termination issued by the Company as the effective date on which Employee’s Termination of Employment occurs.
“Termination of Employment” shall be determined to have occurred on the Termination Date specified in the Notice of Termination delivered to Employee as specified in Section 2 of this Agreement.
“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 13 hereof. For purposes of this Agreement, a “Notice of Termination” means a written notice which (a) states that Employee’s employment is being terminated, (b) specifies the Termination Date, (c) solely in the case of termination for “Cause,” states that the termination is for Cause, and (d) solely in the case of termination by Employee for Good Reason, states that the termination is for Good Reason.
3.Compensation upon Termination following a Change of Control. Subject to the provisions of subsection (d) below and Sections 4 and 5 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:
i.Employee shall receive payment of Employee’s unpaid base salary earned through the date on which Notice of Termination is given, payable in accordance with the Company’s normal payroll schedule and payroll practices in effect as of the date on which Notice of Termination is given, subject to all applicable withholdings and deductions.
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ii.If a bonus awarded to Employee pursuant to any Bonus Plan for payment in the year in which Notice of Termination is given shall not have been paid to Employee, Employee shall receive the amount of such award within 15 days after the date on which Notice of Termination is given. If no such bonus shall have been awarded to Employee under any Bonus Plan, Employee shall receive the following within 15 days after the date on which Notice of Termination is given: 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 year in which Notice of Termination is given.
iii.Within 15 days after the date on which Notice of Termination is given, Employee shall receive a lump sum cash payment equal to the pro-rated amount of the Target Bonus (the “Pro-Rated Target Bonus”). 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 year following the date on which Notice of Termination is given and (ii) the denominator of which is the number of days in the Performance Period.
iv.Beginning with the date on which Notice of Termination is given, Employee shall receive the following:
a.The Company will continue to pay Employee’s Base Salary for the duration of the applicable Base Salary Continuation Period (the “Base Salary Severance Amount”), in accordance with the Company’s normal payroll schedule and payroll practices in effect from time to time, subject to all applicable withholdings and deductions, provided, however, that any payment of base salary made to Employee in respect of any notice period which he or the Company is required to give under the terms of his Contract of Employment (irrespective of whether Employee works, is placed on garden leave, or payment is made in lieu of, all or a part of such notice period) shall be offset against the Base Salary Severance Amount, and provided that in the event that Employee is made redundant by the Company, then any statutory redundancy payment to which Employee is entitled shall be offset against the Base Salary Severance Amount calculated as of the Termination Date, and Employee shall not be entitled to double recovery in respect of (i) any statutory redundancy payment or (ii) any payment of base salary payable to Employee in respect of any notice period which he or the Company is required to give under the terms of his Contract of Employment.
b.Employee shall receive a payment equal to (A) one hundred percent (100%) of the Target Bonus on the twelve (12) month anniversary of the date on which Notice of Termination is given; and (B) fifty percent (50%) of the Target Bonus on the twenty-four (24) month anniversary of the date on which Notice of Termination is given. The amount paid on each such date shall be paid in the form of a single lump sum cash payment less any applicable deductions.
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c.Subject to statutory deductions, during the Benefit Period, the Company shall continue to provide health and dental benefits under the Company’s then-current health and dental plans for Employee and Employee’s spouse and eligible dependents on the same basis as if Employee had continued to be employed during that period. Notwithstanding the preceding, if Employee and Employee’s spouse and eligible dependents are not eligible to continue coverage under the Company’s health and/or dental plan(s), subject to statutory deductions, the Company will reimburse Employee in cash on the last day of each month during the Benefit Period (or balance thereof) an amount based on the cost actually paid by Employee for that month to maintain health and/or dental insurance coverage from commercial sources that is comparable to the health and/or dental coverage Employee last elected as an employee for Employee and Employee’s spouse and eligible dependents under the Company’s health and/or dental plan(s) covering Employee, where the net monthly reimbursement after taxes are withheld will equal the Company’s portion of the cost paid by Employee for that month’s coverage determined in accordance with the Company’s policy then in effect for employee cost sharing, on substantially the same terms as would be applicable to an executive officer of the Company.
d.The Company shall reimburse Employee for the cost of outplacement assistance services incurred by Employee up to a maximum of $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, which proof must be submitted no later than December 1st of the calendar year after the calendar year in which the expense was incurred. Notwithstanding the foregoing, Employee shall only be entitled to reimbursement for those outplacement service costs incurred by Employee on or prior to the last day of the second year following the Termination Year.
v.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.
vi.As a condition to the obligation of the Company to pay compensation and provide benefits under this Agreement, the Company shall have received from Employee immediately following the Termination Date a written waiver and release of claims against the Company substantially in the form attached hereto as Exhibit A (but subject to any necessary adjustments reasonably determined by the Company to be necessary to comply with applicable laws and regulations in effect as of Employee’s Termination Date) executed by Employee (the “Release”). If Employee fails to execute the Release, no payments or benefits shall thereafter be made or provided to Employee pursuant to this Agreement.
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4.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, technology, manufacturing and assembly methods, procedures, work instructions, 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.
5.Equitable Relief.
i.Employee acknowledges that the restrictions contained in Section 4 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 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.
ii.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 4 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 4, 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 4 hereof should
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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.
iii.Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section 4 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or other equitable relief, may be brought in the United States District Court for the Eastern District of 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 13 hereof.
6.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 15(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.Where Employee receives any benefit or payment provided for under this Agreement, he shall not be entitled to any benefit under the Senior Executive Officer Severance Agreement and vice versa. Under no circumstances may he be entitled to receive payment under both agreements.
7.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 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 enforcing any of the obligations of the Company under this Agreement, unless the lawsuit brought by Employee is determined wholly or substantially in the Company’s favor. The Company shall reimburse Employee for expenses under this Section 7 no later than the end of the calendar year next following the calendar year in which such expenses were incurred. The Company shall not be obligated to pay any such expenses for which Employee fails to make a
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demand and submit an invoice or other documented reimbursement request at least 10 business days before the end of the calendar year next following the calendar year in which such expenses were incurred. The amount of such expenses that the Company is obligated to pay in any given calendar year shall not affect the expenses that the Company is obligated to pay in any other calendar year. Employee’s right to have the Company pay the expenses may not be liquidated or exchanged for any other benefit.
8.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.
9.Deductions or Set-Offs. The Company reserves the right to make deductions in respect of all sums from time to time owed by Employee to the Company or any Associated Company, from Employee’s pay, bonus, allowances, expenses, or from any amounts which may be due to Employee by the Company pursuant to this Agreement. By agreeing to the terms and conditions set out in this Agreement Employee consents to the deduction of such sums.
10.Taxes. Any payments required under this Agreement shall be paid net of (i) taxes withheld or deducted by the Company in accordance with the requirements of law and (ii) deductions for the portion of the cost of certain benefits to be borne by Employee. The Company reserves absolute discretion to determine the manner in which tax should be applied to any such amounts or benefits.
11.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.
12.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
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Company as herein before defined and any such successor or successors to its business or assets, jointly and severally.
13.Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be in writing 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
155 S. Limerick Rd.
Limerick, PA 19468
Attn: General Counsel
And copy to:
Teleflex Incorporated
550 E. Swedesford Rd.
Suite 400
Wayne, PA 19087
Attn: General Counsel
If to Employee, to:
James Winters [ADDRESS OMITTED]
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 13 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.
14.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.
15.Contents of Agreement, Amendment and Assignment.
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(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 6 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.
(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company and/or any subsidiary of the Company.
(c) All of the terms and provisions of this Agreement, including the covenants of Section 4, 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.
16.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.
17.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.
18.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.
19.Construction. The word “including” means “including without limitation.”
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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/ Cameron Hicks Name: Cameron HicksTitle: Corporate Vice President, Human Resources and Communications | |||||
/s/ James Winters James Winters | |||||
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EXHIBIT A
GENERAL RELEASE
1. I, James Winters, for and in consideration of certain payments to be made and the benefits to be provided to me under the Executive Change In Control Agreement, dated as of March ___, 2020 (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 and/or any Associated 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 the constitution, contract, common law, in equity, statute (in particular, but not limited to the Unfair Dismissals Acts 1977–2007, the Minimum Notice and Terms of Employment Acts 1973–2005, the Organisation of Working Time Act 1997, the Redundancy Payments Acts 1967–2014, the Terms of Employment (Information) Acts 1994–2014, the Payment of Wages Act 1991, the Maternity Protection Acts 1994-2004 and the National Minimum Wage Act 2000, the Safety Health and Welfare at Work Acts 2005 and 2010, the Employment Equality Acts 1998-2012, the Protection of Employment Acts 1977 to 2014, the Employees (Provision of Information and Consultation) Act 2006, the Protection of Employees (Part-Time) Work Act 2001, the Protection of Employees (Fixed-Term) Work Act 2003, the Adoptive Leave Acts 1995-2005, the Carer’s Leave Act 2001, the Data Protection Acts 1988-2003, the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, the Industrial Relations Acts 1948-2015, the Parental Leave Acts 1998 and 2006, the Pensions Act 1990 (as amended), the Protection of Young Persons (Employment) Act 1996, the Protection of Employees (Temporary Agency Work) Act 2012, the Protected Disclosures Act 2014, the Workplace Relations Act 2015, as well as the Pennsylvania Human Relations Act, 43 Pa. C.S.A. §§951 et seq., the Rehabilitation Act of 1973, 29 USC §§701 et seq., Title VII of the Civil Rights Act of 1964, 42 USC §§2000e et seq., the Civil Rights Act of 1991, 2 USC §§60 et seq., the Age Discrimination in Employment Act of 1967, 29 USC §§621 et seq., the Americans with Disabilities Act, 29 USC §§706 et seq., and
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the Employee Retirement Income Security Act of 1974, 29 USC §§301 et seq.), the common law or otherwise all as amended, and all claims for counsel fees and costs, 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. Finally, I waive and compromise any claim to take a personal injuries claim against the Company, the Group, any director, member or employee.
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 was permanently and irrevocably severed on ___________________, 20__ and the Company and its subsidiaries have 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.
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.
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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 further acknowledge that the terms of Sections 4 and 5 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]
Intending to be legally bound hereby, I execute the foregoing Release this ___ day of _____________, 20 ___.
________________________ ____________________
Witness
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Exhibit 22
Subsidiary Guarantors of Guaranteed Securities
The following subsidiaries of Teleflex Incorporated are guarantors of its $400 million principal amount of 4.875% Senior Notes due 2026 and $500 million principal amount of 4.625% Senior Notes due 2027:
Arrow International LLC
Arrow Interventional, Inc.
NeoTract, Inc.
Teleflex LLC
Teleflex Medical Incorporated
Teleflex Medical OEM LLC
TFX Equities Incorporated
TFX North America Inc.
Vascular Solutions LLC
Exhibit 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
I, Liam J. Kelly, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Teleflex Incorporated;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a. designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b. designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c. evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d. disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a. all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b. any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| Date: April 30, 2020 | /s/ Liam J. Kelly | |||||||
| Liam J. Kelly | ||||||||
| President and Chief Executive Officer | ||||||||
Exhibit 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
I, Thomas E. Powell, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Teleflex Incorporated;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a. designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b. designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c. evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d. disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a. all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b. any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| Date: April 30, 2020 | /s/ Thomas E. Powell | |||||||
| Thomas E. Powell | ||||||||
| Executive Vice President and Chief Financial Officer | ||||||||
Exhibit 32.1
CERTIFICATION PURSUANT TO
RULE 13a-14(b) UNDER THE
SECURITIES EXCHANGE ACT OF 1934
In connection with the Quarterly Report of Teleflex Incorporated (the “Company”) on Form 10-Q for the period ending March 29, 2020, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Liam J. Kelly, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial position and results of operations of the Company.
| Date: April 30, 2020 | /s/ Liam J. Kelly | |||||||
| Liam J. Kelly President and Chief Executive Officer | ||||||||
Exhibit 32.2
CERTIFICATION PURSUANT TO
RULE 13a-14(b) UNDER THE
SECURITIES EXCHANGE ACT OF 1934
In connection with the Quarterly Report of Teleflex Incorporated (the “Company”) on Form 10-Q for the period ending March 29, 2020, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Thomas E. Powell, Executive Vice President and Chief Financial Officer, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial position and results of operations of the Company.
| Date: April 30, 2020 | /s/ Thomas E. Powell | |||||||
| Thomas E. Powell Executive Vice President and Chief Financial Officer | ||||||||