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EXECUTIVE CHANGE IN CONTROL AGREEMENT
This
First Amendment (“Amendment”) to the Executive Change
in Control Agreement (“Agreement”) dated as of
June 21, 2005, between Teleflex Incorporated (the
“Company”) and Randall P. Gaboriault
(“Employee”) is hereby made by the Company and Employee
effective as of January 1, 2009.
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A.
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The
Company and Employee (collectively the “Parties”)
desire to amend the Agreement to bring it into compliance with
Section 409A of the Internal Revenue Code of 1986, as amended
(“Code”), and the Treasury Regulations and other
guidance issued thereunder.
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B.
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Section 16(a) of the Agreement
authorizes the Parties to amend the Agreement in a written document
executed by both Parties.
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Amendment
of the Agreement
In
consideration of the mutual covenants hereinafter set forth, and
intending to be legally bound, the Parties hereby agree as
follows:
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1.
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The
definition of “Commencement Date” is amended by
deleting the following from the end thereof:
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“, unless earlier payment of
compensation or benefits under this Agreement is permissible under
Section 409A of the Code, in which case Commencement Date
shall mean the earliest permissible date.”
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2.
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The
definition of “Termination of Employment” is amended by
adding the following at the end thereof:
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“Employee’s Termination
of Employment for all purposes under this Agreement will be
determined to have occurred in accordance with the
‘separation from service’ requirements of Code
Section 409A and the Treasury Regulations and other guidance
issued thereunder, and based on whether the facts and circumstances
indicate that the Company and Employee reasonably anticipated that
no further service would be performed after a certain date or that
the level of bona fide services Employee would perform after such
date (as an employee or as an independent contractor) would
permanently decrease to no more than 20 percent of the average
level of bona fide services performed over the immediately
proceeding 36-month period (or actual period of service, if
less).”
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3.
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Subsection (iii) of Section
3(c) of the Agreement is amended in its entirety to read as
follows:
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“(iii) in the event the
Employee was a participant in such plan prior to the Termination
Date, the Employer Non-Elective Contributions with which Employee
would have been credited under the Teleflex Incorporated Deferred
Compensation Plan (“Deferred Compensation Plan”) for
each of the next two (2) plan years following the plan year
which includes the Termination Date, based upon the
Employee’s Compensation and Bonus, as those terms are defined
in the Deferred Compensation Plan, for each of the two
(2) plan years immediately following the plan year which
includes the Termination Date and are the same as Employee’s
Compensation and Target Bonus for the plan year which includes the
Termination Date.”
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4.
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Section 3(d)(i) of the
Agreement is amended in its entirety to read as follows:
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“Employee shall receive an
amount equal to two times Employee’s Base Salary (the
“Base Salary Severance Amount”), which shall be divided
into 24 equal monthly installments and paid as follows: (A) on
the Commencement Date an amount equal to the first seven monthly
installments and (B) an additional monthly installment on the
first day of each month thereafter for the next seventeen months .
However, if the Change of Control does not satisfy the requirements
to be a ‘change in control’ for purposes of Code
Section 409A and the Treasury Regulations and other guidance
issued thereunder, then, if necessary to satisfy Code
Section 409A, the Base Salary Severance Amount shall be
divided into 18 equal monthly installments (increased by one
additional month for each completed year of full-time employment by
Employee from and after January 1, 2008, not to exceed an
additional six months) and paid as follows: (A) on the
Commencement Date an amount equal to the first seven monthly
installments and (B) an additional monthly installment on the
first day of each month thereafter until all of the installments
have been paid.”
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5.
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Section 3(d)(ii) of the
Agreement is amended by adding the following at the end
thereof:
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“The amount paid on each such
date shall be paid in the form of a single lump sum cash
payment.”
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6.
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Section 3(d)(iii) of the
Agreement is amended in its entirety to read as follows:
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“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 during the balance
of the Benefit Period on the same basis as if Employee had
continued to be employed during that period. If the continuation of
coverage under the Company’s health and dental plans for
Employee and Employee’s spouse and eligible dependents
results in a violation of Section 105(h) of the Code, the
continuation of coverage will be on an after-tax basis with the
portion of the monthly cost of coverage paid by the Company being
additional taxable income. If the continuation of coverage under
the Company’s health and dental plans will be on an after-tax
basis, the Company will pay Employee a lump sum cash payment on the
last day of each applicable month during the Benefit Period (or
balance thereof) so that Employee will be in the same position as
if the continuation of coverage could have been provided on a
pre-tax basis. The COBRA health care continuation coverage period
under Section 4980B of the Code shall begin at the end of the
Health Care Continuation Period. Notwithstanding the preceding, if
Employee and Employee’s spouse and eligible dependents are
not eligible to continue coverage under the Company’s
he
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