Separation Agreement and Release, dated December 31, 2018, between Integer Holdings Corporation and Jeremy Friedman
EX-10.32 3 friedman_releasexagreement.htm EXHIBIT 10.32 Exhibit
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE (“Agreement”) is entered into between Jeremy Friedman (“you”) and Integer Holdings Corporation (“Company”). In consideration of the mutual promises, benefits and covenants herein contained, you and the Company hereby agree as follows:
You acknowledge that your employment with Company and any other Releasee (as defined below) ended as a result of your retirement effective December 28, 2018 (the “Separation Date”). After the Separation Date, you will not represent to others that you are an employee, officer, agent, or representative of Company or any other Releasee for any purpose. As a result of your retirement, your pay ceased as of the Separation Date, and your benefits will terminate in accordance with Company’s plan documents, except for any benefit continuation or conversion rights you may have under the applicable plan documents. Group health plan coverage terminated on December 28, 2018, except to the extent you exercise any continuation coverage rights you have pursuant to COBRA. You will receive COBRA notice under separate cover.
If you timely execute, do not revoke, and comply at all relevant times with this Agreement, you will be eligible to receive “Separation Payments” in the aggregate amount of $1,514,496.00, less applicable taxes and withholdings, payable in 39 consecutive substantially equal bi-weekly installments of $38,833.23 each over 18 months commencing on March 1, 2019, in accordance with the Company’s regular payroll practices. Notwithstanding the foregoing, in order to comply with the 6-month delay rule under Section 409A of the Internal Revenue Code and the Treasury Regulations thereunder (“Section 409A”), the Separation Payment installments will not commence until July 5, 2019, and the first installment will be in the amount of $388,332.31, which includes bi-weekly installment payments in the aggregate amount of $349,499.08 that would have been paid to you beginning on March 1, 2019, but for the 6-month delay required under Section 409A. The balance of your Separation Payments, in the aggregate amount of $1,126,163.69, will be paid in 29 consecutive bi-weekly installments beginning on July 19, 2019.
Whether or not you execute this Agreement, or you execute this Agreement but then revoke the Agreement, the Company will pay you:
An “Initial RSU Payment” equal to 23,688 shares of Company common stock (subject to any required tax withholding obligation satisfied through the withholding by the Company of Company common stock), representing the right to receive one share of Company common stock in settlement of each restricted stock unit (RSU) awarded to you pursuant to the letter agreement between you and the Company, dated October 7, 2016, and that vests as of December 28, 2018 without regard to your retirement. The Initial RSU Payment will be made as soon as administratively practicable following December 28, 2018, but in no event later than January 15, 2019; and
A “Second RSU Payment” equal to 23,689 shares of Company common stock (subject to any required tax withholding obligation satisfied through the withholding by the Company of Company common stock), representing the right to receive one share of Company common stock in settlement of each RSU awarded to you pursuant to the letter agreement between you and the Company, dated October 7, 2016, and that is eligible for accelerated retirement vesting treatment in accordance with the letter agreement between you and the Company, dated February 18, 2018. The Second RSU Payment will be made as soon as administratively practicable following the date that is 6 months after the Separation Date, but in no event later than July 2, 2019; and
A bonus, if any, under the Company’s short term incentive compensation plan in respect of the 2018 fiscal year to which you are entitled in accordance with the February 18, 2018 letter agreement between you and the Company (the “Accrued Bonus”); and
Any accrued Paid Time Off and any expenses reimbursable under the Company’s policies, which you incurred on or before the Separation Date (the “Other Accrued Obligations”).
Vesting of Options
Effective as of the Separation Date, in accordance with the nonqualified stock option awarded to you pursuant to the letter agreement between you and the Company, dated October 7, 2016, you shall have the right to purchase 33,334 shares of the Company’s common stock, 16,667 shares of which are eligible for accelerated retirement vesting treatment in accordance with such letter agreement. Any exercise of the nonqualified stock option must be in accordance with the terms and conditions of the Company’s Stock Incentive Plan and the applicable award agreement.
For and in consideration of the Separation Payments, together with other good and valuable consideration, the sufficiency of which you hereby acknowledge, you, on behalf of yourself and your heirs, executors, personal representatives, successors and assigns (collectively, a “Releasor” or “Releasors”), hereby release and forever discharge the Company, and its current and former parents, subsidiaries, affiliates, predecessors, successors, and related companies, and each of these entities’ current and former owners, directors, officers, members, managers, shareholders, partners, agents, employees, contractors, attorneys, successors and assigns, in both their individual and official capacities, as appropriate (collectively, a “Releasee” or “Releasees”), of and from any and all claims, complaints, demands, actions, causes of action, suits, rights, debts, obligations, judgments, damages, entitlements, liabilities, and expenses (including attorneys’ fees) of any kind whatsoever that any Releasors now have or ever had against any Releasees, whether known or unknown, suspected or unsuspected, or concealed or apparent related to your employment with the Company or any other Releasee, and the termination of such employment (the “Released Claims”).
For the avoidance of doubt, and without limiting the broad nature of the Released Claims, this Agreement releases each of the Releasees from any and all claims arising under any law relating to employment, including, but not limited to (all as amended), Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act of 1990, the Equal Pay Act of 1963, the Immigration Reform and Control Act of 1986, the Genetic Information Nondiscrimination Act of 2008, the Civil Rights Act of 1866 (42 U.S.C. §§ 1981–1988), the Employee Retirement and Income Security Act of 1974, the federal Worker Adjustment and Retraining Notification Act, the Uniform Services Employment and Reemployment Rights Act, all claims under the Texas Labor Code (including Chapter 21, formerly known as the Texas Commission on Human Rights Act, and Chapter 451, known as the Texas Anti-Retaliation Law), and any and all state and local laws that may be legally waived; (3) for wages, wage supplements, paid time off, or any other form of compensation or benefit; (4) arising under any employee benefit plan, policy, or practice; (5) arising under tort, contract, or quasi-contract law, including but not limited to claims of breach of an expressed or implied contract, tortious interference with contract or prospective business advantage, breach of the covenant of good faith and fair dealing, promissory estoppel, detrimental reliance, retaliation, violation of public policy, invasion of privacy, nonphysical injury, personal injury or sickness or any other harm, wrongful or retaliatory discharge, fraud, defamation, slander, libel, false imprisonment, or negligent or intentional infliction of emotional distress; (6) for monetary or equitable relief, including but not limited to attorneys’ fees,
back pay, front pay, reinstatement, compensatory or punitive damages, liquidated damages, experts’ fees, medical fees or expenses, costs or disbursements; and (7) arising under any other federal, state, or local law, statute, amendment, rule, regulation, order, code, common law, policy, ordinance, or court decision.
The Released Claims do not include any claim: (a) that arises exclusively after the date you execute this Agreement; (b) to vested rights under any of the Company’s employee benefit plans; (c) relating to your right to receive the Accrued Bonus or Other Accrued Obligations; (d) relating to the enforcement of your rights under this Agreement; or (e) that cannot be released under law, such as claims for statutory unemployment benefits or workers’ compensation benefits.
Return of Company Property
You agree and represent that, on or before the Separation Date, you returned all Company property, including keys, credit cards, security access cards, codes, iPads, memoranda, data, records, notes and other information in your possession or under your control in any form. Notwithstanding the foregoing, the Company agrees that you may keep your computer and cell phone, provided that the Company will be entitled to remove all confidential and proprietary information from such devices, to its reasonable satisfaction. You also must convert the service on the cell phone to a new service plan in your own name.
Confidential and Proprietary Information
You acknowledge and reaffirm the validity of the Inventions, Non-Disclosure and Non-Solicitation Agreement (the “Confidentiality Agreement”) that you previously signed. By signing this Agreement, you acknowledge and agree that you have had access during your employment with the Company to confidential and proprietary information of Company (“Trade Secrets”), and further acknowledge and agree that the release or disclosure of any of the Company’s Trade Secrets will cause irreparable injury. By signing this Agreement, you acknowledge that you have not used or disclosed, and agree that you will not at any time use or disclose, directly or indirectly, to any other entity or person, any Trade Secrets of the Company, its affiliates, or any officers, directors or employees. You also agree that you will not attempt to gain access to such information through restricted means. You understand that the Company would not provide you with the monies and benefits under this Agreement but for your affirmation of the obligations under the Confidentiality Agreement. You further understand and agree that a violation of this provision is a material breach of this Agreement and may be enforceable against the person making disclosure by injunctive relief and by an award of damages.
Nothing herein shall be construed to prevent disclosure of Trade Secrets as may be (1) permitted by the Protected Rights Section of this Agreement, (2) required by applicable law or regulation, pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, or pursuant to a valid subpoena (provided that such disclosure does not exceed the extent of disclosure required by such law, regulation, order, or subpoena), or (3) to a court or government agency to the extent you have a protected right to do so. You shall promptly provide written notice to an authorized officer of the Company of any order, subpoena, or other attempt to require disclosure of Confidential Information under the immediately preceding subsection (2). Additionally, notwithstanding any other provision of this Agreement, you will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that: (1) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (2) is made in a complaint or other document filed under seal in a lawsuit or other proceeding. If you file a lawsuit for retaliation by the Company for reporting a suspected violation of law, you may disclose the Company’s trade secrets to your attorney and use the trade secret information in the court proceeding if you: (1) file any document containing trade secrets under seal; and (2) do not disclose trade secrets, except pursuant to court order.
Confidentiality of Agreement
You agree that you have not and will not, directly or indirectly, disclose/d any information related to the terms and contents of this Agreement to any other person or entity. You understand that the Company would not provide you with the monies and benefits under this Agreement but for your agreement to keep the Agreement confidential. You further understand and agree that a violation of this provision is a material breach of this Agreement and may be enforceable against the person making disclosure by injunctive relief and by an award of damages. This confidentiality obligation does not prohibit disclosure (a) permitted by the Protected Rights Section, (b) to your spouse, tax advisor, or attorney (each of whom you must ensure agrees to keep such information confidential), (c) to comply with a valid court order, subpoena, or other direction by a court, (d) to a governmental entity to the extent you have a protected right to make such disclosure, or (e) as otherwise required by law. You understand and agree that you will remain liable for any disclosure of such information by your spouse or agent.
Except as permitted in the Protected Rights Section, you agree that you will not knowingly utter, to any person or entity, any statement, whether oral, written, or implied, that directly or indirectly disparages, denigrates, defames, or ridicules the Company or any other Releasee or the products, services, vendors, customers, or prospective customers of the Company or any other Releasee. Nor will you knowingly utter, to any person or entity, any negative statement concerning your employment with the Company or the termination of such employment. Nothing herein shall restrict you from providing truthful information to a court or government agency to the extent you have a protected right to do so, or as otherwise required by law.
The Company agrees that it will advise the members of its Board of Directors and its executive officers that they may not knowingly utter, to any person or entity, any statement, whether oral, written, or implied, that directly or indirectly disparages, denigrates, defames, or ridicules you and that they may not knowingly utter, to any person or entity, any negative statement concerning you or your employment with the Company or the termination of such employment. Nothing herein shall restrict any member of the Company’s Board of Directors or any of the Company’s executives from providing truthful information to a court or government agency to the extent they have a protected right to do so, or as otherwise required by law.
The making of this Agreement is not, and shall not be construed or represented as, an admission that the Company or any other Releasee has violated any law or has committed any wrong against you or any other person or entity or an admission by you that you have committed any wrong against the Company or any other Releasee.
Severability, Choice of Law, and Venue
In the event that any provision of this Agreement is found to be illegal or unenforceable, such provision shall be severed or modified to the extent necessary to make it enforceable, and as so severed or modified, the remainder of this Agreement shall remain in full force and effect. This Agreement shall be governed and construed in accordance with laws of the State of New York, without regard to the principles of conflict of law. Any action or proceeding brought by either of the parties related to your employment or the termination of your employment, or to enforce this Agreement, shall be brought only in a state or federal court located in the State of New York, County of Erie. You hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.
Third Party Claims
You warrant that you alone are entitled to the Separation Payments, and further warrant and agree that any claim to such amounts by any other person or entity by reason of any claim, lien, or debt of yours, or otherwise, shall be your sole and exclusive responsibility, and that you will hold harmless, indemnify, and defend each of the Releasees from any claim or action brought by any person or entity against any of the Releasees making any claim to all or part of the Separation Payments.
Nothing in this Agreement limits your rights, protected under law, to file a charge or communicate with or otherwise participate in any investigation or proceeding conducted by the Securities and Exchange Commission, the Financial Industry Regulatory Authority, the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, the National Labor Relations Board, or any other government agency charged with enforcement of any law.
Any payments and benefits provided under this Agreement are intended to be exempt from or comply with Section 409A, and this Agreement shall be interpreted and construed in accordance with this intent. Any terms or provisions of this Agreement that are undefined or ambiguous shall be interpreted in a manner that makes the payment or benefit in question exempt from, or compliant with, Section 409A. However, neither the Company nor any Releasee will be liable to you or any other person with respect to any adverse tax consequences arising under Section 409A or any other provision of the Internal Revenue Code.
This Agreement, together with the Confidentiality Agreement, constitutes the entire agreement between you and the Company and may not be modified in any way except by written agreement signed by you and an authorized representative of the Company. This Agreement supersedes any and all other written and oral agreements and understandings between the parties relating to the subject matter hereof; provided that the Confidentiality Agreement will continue in effect in accordance with its terms. You are not eligible for any other payment or benefits from the Company, except for those expressly described in this Agreement.
Copies of signatures transmitted by facsimile or electronic mail shall have the same effect as original signatures. Company may assign this Agreement at any time. This Agreement shall inure to the benefit of Company and its successors and assigns. You may not assign this Agreement or any part hereof. Any purported assignment by you shall be null and void from the initial date of purported assignment. No provision of this Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by you and by the General Counsel of the Company. No waiver by either of the parties of any breach by the other party hereto of any condition or provision of this Agreement to be performed by the other party hereto shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by either of the parties in exercising any right, power, or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.
You acknowledge, affirm and agree that:
(a) You have read the Agreement and understand its legal and binding effect;
(b) You are acting voluntarily, knowingly, and willingly, and of your own free will in executing this Agreement;
(c) The consideration to be provided to you under this Agreement: (i) exceeds anything of value to which you would otherwise be entitled in the absence of this Agreement; (ii) fully and completely settles all claims you (and any attorney you may have retained) may have against the Company or any other Releasee for attorneys’ fees, costs, disbursements, and the like; and (iii) is sufficient consideration for your promises under this Agreement;
(d) You have been advised by the Company in this writing to consult with an attorney of your choosing prior to executing this Agreement and you have done so to the extent you desired;
(e) You were given 21 calendar days to consider signing this Agreement, and if you sign this Agreement before the end of this 21 calendar day period, it is your voluntary decision to do so and you waive the remainder of the 21 calendar day period;
(f) You have until the end of such 21 calendar day period to deliver an executed copy of this Agreement to Kirk Thor, Integer Holdings Corporation, 5830 Granite Parkway, Suite 1150, Plano, Texas 75024, with a copy via email to ***@***.
(g) You understand that if you sign this Agreement, you can change your mind and revoke your acceptance of this Agreement within seven (7) calendar days after signing it. Any revocation of your acceptance of this Agreement must be in writing and delivered to Kirk Thor, Executive Vice President & Chief Human Resources Officer, Integer Holdings Corporation, 5830 Granite Parkway, Suite 1150, Plano, Texas 75024, with a copy via email to ***@***, no later than the seventh (7th) calendar day after you sign this Agreement. If you do not revoke your acceptance of this Agreement, the Agreement and your right to Separation Payments will become effective on the eighth (8th) day following the date you sign this Agreement;
(h) You have no known workplace injuries or occupational diseases, and you have been provided and/or have not been denied any leave (paid or unpaid) to which you were entitled during your employment;
(i) You have been paid in full for all work that you have performed for the Company and any other Releasee and, except for the Separation Payments, the Initial RSU Payment, the Second RSU Payment, any Accrued Bonus, and any Other Accrued Obligations, you are not owed any further wages, wage supplements, bonuses, commissions, benefits or other amounts of any kind whatsoever by any Releasee; and
(j) You further acknowledge and agree that, in entering into this Agreement, you have been provided the opportunity to consult your own attorney or other advisor, and that you have consulted your own attorney or other advisor.
/s/ Jeremy Friedman
Integer Holdings Corporation
/s/ Kirk Thor