Rights and Duties of the Parties. 3.01 Xxxx releases Aegion and all other persons and entities from any Claim against Aegion and waives any right of his to xxx Aegion for legal or equitable relief, or both, on any Claim against Aegion. In addition, and without limiting the generality of the foregoing, and except as otherwise prohibited by law, the release and the waiver in this paragraph apply to any one or more of the following specific matters: (a) Xxxx’x employment with Aegion; (b) the termination of Xxxx’x employment with Aegion; (c) any policy, practice, decision, promise, agreement, conduct, act or omission by Aegion prior to this date; (d) any compensation, benefit, or benefit plan associated with Xxxx’x employment with Aegion, including but not limited to compensation, benefits and benefit plans governed by the Employee Retirement Income Security act of 1974 (“ERISA”); and/or (e) any transaction, occurrence, act, or omission concerning or arising from either Xxxx’x employment with Aegion or the termination of that employment, or both. Nothing in this Agreement prevents Xxxx from filing a charge with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission (“SEC”) or any other administrative agency if applicable law requires that Xxxx be permitted to do so. However, in executing this Agreement, Xxxx is waiving the right to any monetary recovery in connection with any such complaint or charge that Xxxx may file with an administrative agency, except that this Agreement does not limit Xxxx’x right to receive an award for information provided to the SEC and/or other administrative agencies concerning a possible securities law violation. 3.02 By executing this document, Xxxx expressly waives any and all rights or claims arising under the Age Discrimination in Employment Act (“ADEA”) and the Older Workers Benefit Protection Act (“OWBPA”), and: (a) further acknowledges and understands that this refers to rights or claims under the ADEA; (b) acknowledges that this waiver of rights or claims under the ADEA is in writing and is understood by Xxxx; (c) expressly understands that by signing this Agreement, Xxxx is not waiving any rights or claims that may arise after the date this document is signed; (d) acknowledges that this waiver of any rights or claims arising under the ADEA is in exchange for payment of the Separation Sum, which exceeds that to which Xxxx is otherwise entitled; (e) acknowledges that Aegion has expressly advised him/her to consult an attorney of Xxxx’x choosing prior to signing this Agreement; (f) acknowledges that Xxxx was also given a period of time not less than forty-five (45) days within which to consider this Agreement; and (g) acknowledges that Xxxx has been advised by Aegion that in the event Xxxx signs this Agreement, Xxxx is entitled to revoke his waiver of rights or claims arising under the ADEA within seven (7) days after signing this Agreement by delivering a written notice of revocation to Xx. Xxxxxxxx and that said waiver will not and does not become effective or enforceable until the seven (7) day revocation period has expired. 3.03 If Xxxx accepts and signs this Agreement and does not revoke the release of claims under the ADEA as described in Paragraph 3.02(g), then Aegion shall pay the first installment of the Separation Sum, less all withholding amounts required by law, with the first payroll following the expiration of the revocation period. The remainder of the severance will be paid on a pro rata basis with regularly scheduled payroll for a total period of fifteen (15) months, inclusive of the date of the first installment. However, should Xxxx revoke his waiver of his rights and claims under the ADEA during the revocation period such that Aegion does not receive a full release and such that Xxxx could pursue claims and rights under the ADEA, the amount of the Separation Sum shall be reduced to the amount of One Thousand Dollars and Zero Cents ($1,000.00), less withholdings required by law, to be paid with the first payroll following Xxxx’x revocation. 3.04 If Xxxx accepts and signs this Agreement and does not revoke the release of claims under the ADEA as described in Paragraph 3.02(g), and Xxxx elects to continue his group health insurance coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) and takes all necessary actions to elect such coverage, then, for the coverage period that coincides with his severance payments, Xxxx’x COBRA premium shall be reduced to his normal employee contribution rate. After the Severance Period expires, Xxxx shall be responsible for paying the full amount of the COBRA premium, in the event he elects to continue COBRA coverage. 3.05 If Xxxx accepts and signs this Agreement and does not revoke the release of claims under the ADEA as described in Paragraph 3.02(g), then Aegion will pay directly to a vendor of Xxxx’x choice up to Fifteen Thousand Dollars and Zero Cents ($15,000.00) for outplacement services for Xxxx. 3.06 Xxxx’x rights to the 2015 and 2016 restricted stock unit awards issued to Xxxx during his employment with Aegion will be treated as if he were terminated without cause. Xxxx acknowledges that, pursuant to the terms of the 2015 Restricted Stock Unit Agreement, 30/36 of the restricted stock units granted to him via that agreement will vest and he will forfeit the remaining 6/36 of the awarded restricted stock units. Xxxx also acknowledges that, pursuant to the terms of the 2016 Restricted Stock Unit Award Agreement, 18/36 of the restricted stock units granted to him via that agreement will vest and he will forfeit the remaining 18/36 of the awarded restricted stock units. Xxxx acknowledges that, pursuant to the terms of his 2017 Restricted Stock Unit Award Agreement, he will forfeit all restricted stock units issued to him pursuant to that agreement. All performance unit award agreements, whether they be cash or stock, are expressly terminated by this Agreement. 3.07 During the Severance Period, Xxxx shall cooperate with Aegion in the transition of Xxxx’x duties, including but not limited to answering questions and providing information related to the performance of Xxxx’x job duties as they existed during his employment with Aegion. Xxxx shall also cooperate with Aegion in the event that Aegion is a party to litigation or other proceeding for which Xxxx may have relevant information, evidence or testimony, and Aegion shall reimburse Xxxx for any lost wages, compensation and benefits, and any reasonable expenses or costs he incurs with respect thereto. 3.08 Xxxx shall retain as his property the laptop computer, cell phone, and tablet he used while employed by Aegion, provided that Aegion shall remove all data from the laptop, cell phone, and tablet before transferring ownership to Xxxx. Xxxx shall return all other Aegion property in his possession, including keys, badges, and documents. 3.09 Xxxx represents, warrants, and agrees that he has not suffered any work-related injury for which he has not already filed a report with or Claim against Aegion; that Xxxx has been paid all wages earned at Aegion; that Xxxx is not aware of any existing or threatened claims, charges, or lawsuits that he has not disclosed to Aegion; that Xxxx does not have any legal reasons-including bankruptcies-that prevent him from fully releasing and waiving all Claims; and that Xxxx has not sold, assigned, transferred or otherwise conveyed to any third party any of his rights, Claims, actions or demands of any nature whatsoever relating to any matter referenced in this Agreement. Xxxx acknowledges receipt of all salary, bonuses, incentive awards, accrued paid time off, benefit plan entitlements and other benefits (except any unpaid vested retirement benefits, if any) to which he was or could be entitled by virtue of employment with Aegion as of the date of this Agreement. Xxxx acknowledges that, as of Employment Separation Date, he has used all accrued paid time off and Aegion does not owe him payment of any accrued and unused paid time off. Xxxx represent, warrants, and agrees that he has been given an adequate opportunity to advise Aegion’s human resources, legal, or other relevant management division, and have so advised such division in writing, of any facts that he is aware of that constitute or might constitute a violation of any ethical, legal, or contractual standards or obligations of Aegion. 3.10 Except for the Retained Claims, Aegion releases Xxxx from any Claim against Xxxx and waives any right to xxx Xxxx for legal or equitable relief, or both, on any Claim against Xxxx arising out of or in connection with any act or omission of Xxxx committed or omitted as an officer or employee of Aegion in the course and scope of his duties prior to the date of this Agreement. This Section 3.10 is not a release of Xxxx’x obligations under this Agreement. 3.11 Xxxx shall avoid any one or more of interference with, disparagement of, or harm to Aegion, Aegion’ employees, clients, services and suppliers. Aegion Corporation will direct its directors and executive officers to not denigrate, disparage, or make any derogatory or negative statements about Xxxx to others outside Aegion, or instruct anyone else to do so. Nothing in this Section 3.11 shall prevent either Party from giving truthful testimony or information to law enforcement entities, administrative agencies, or courts or in any other legal proceedings as required by law, including, but not limited to, assisting in an investigation or proceeding brought by any governmental or regulatory body or official related to alleged violations of any law relating to fraud or any rule or regulation of the Securities and Exchange Commission, or from making any truthful statements or comments in connection with any securities filings or in order to comply with any obligations under federal, state or local laws (including without limitation, any federal securities laws). 3.12 By entering into this Agreement, neither Aegion nor Xxxx admits liability to the other Party. The Parties, by this Agreement, have compromised any existing or potential Claim each has against the other Party, except for the Retained Claims. In so doing, Aegion and Xxxx each intends to extinguish all rights and liabilities concerning any Claim by one Party against the other Party. Nothing herein is deemed to extinguish any rights or obligations of a Party pursuant to this Agreement.
Appears in 1 contract
Samples: Separation Agreement (Aegion Corp)
Rights and Duties of the Parties. 3.01 Xxxx Xxxxxx releases Aegion and all other persons and entities from any Claim against Aegion and waives any right of his to xxx Aegion for legal or equitable relief, or both, on any Claim against Aegion. In addition, and without limiting the generality of the foregoing, and except as otherwise prohibited by law, the release and the waiver in this paragraph apply to any one or more of the following specific matters:
(a) Xxxx’x the Executive’s employment with Aegionthe Company;
(b) the termination of Xxxx’x employment with Aegion;
(c) any policy, practice, decision, promise, agreement, conduct, act or omission by Aegion prior to this date;
(dc) any compensation, benefit, or benefit plan associated with Xxxx’x the Executive’s employment with Aegion, including but not limited to compensation, benefits and benefit plans governed by the Employee Retirement Income Security act of 1974 (“ERISA”); and/or
(ed) any transaction, occurrence, act, or omission concerning or arising from either Xxxx’x the Executive’s employment with Aegion the Company or the termination of that employment, or both. Nothing The Executive has the right under U.S. federal law to certain protections for cooperating with or reporting legal violations to various governmental entities. No provisions in this Transition Agreement prevents Xxxx are intended to prohibit the Executive from disclosing this Transition Agreement to, or from cooperating with or reporting violations to, any such governmental entity, and the Executive may do so without disclosure to the Company. The Company may not retaliate against the Executive for any of these activities, and nothing in this Transition Agreement would require Xxxxxx to waive any monetary award or other payment that he might become entitled to from any such governmental entity. Further, nothing in this Transition Agreement precludes the Executive from filing a charge of discrimination with the Equal Employment Opportunity CommissionCommission or a like charge or complaint with a state or local fair employment practice agency. However, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission (“SEC”) Xxxxxx may not receive a monetary award or any other administrative agency if applicable law requires that Xxxx be permitted to do so. However, in executing this Agreement, Xxxx is waiving form of personal relief from the right to any monetary recovery Company in connection with any such charge or complaint that the Executive has filed or charge that Xxxx may file with an administrative agencyis filed on the Executive’s behalf. Notwithstanding anything contained herein to the contrary, except that this Agreement release does not limit Xxxx’x include (and the Executive does not release) the following: (i) any claims arising out of or related to the rights of the Executive set forth in this Transition Agreement or the Separation Agreement (such as right to receive payment of the Separation Sum), and (ii) rights to indemnification for third-party claims against the Executive arising out of his service as an award for information provided employee, officer, or director of Aegion, to the SEC extent those rights are conferred via the Company’s Amended and Restated Certificate of Incorporation, as amended, and/or other administrative agencies concerning a possible securities law violationTitle 8, Section 154 of the Delaware General Corporation Law (“Permitted Claims”).
3.02 By executing this documentThe Executive has not filed and, Xxxx expressly subject to Section 3.01, agrees not to initiate or cause to be initiated on his behalf, any complaint, charge, claim, or proceeding against Aegion before any local, state, or federal agency, court, or other body relating to the Executive’s employment or the termination of his employment (each, individually, a “Proceeding”), and agrees not to participate voluntarily in any Proceeding. Xxxxxx hereby waives, subject to Section 3.01, any right he may have to benefit in any manner from any relief (whether monetary or otherwise) arising out of any Proceeding.
3.03 The Company hereby releases, gives up and waives any and all rights known and unknown rights, causes of action, lawsuits and claims for liability the Company may now or in the future have against the Executive in any way arising out of, based upon or relating to (i) the Executive’s employment with the Company or any of its subsidiaries, or the termination of or resignation from such employment, (ii) any promise, policy, agreement, action or conduct of the Executive to date, or (iii) any fact occurring prior to this date, except for rights, claims, causes of action and claims for liability against the Executive in any way based on any criminal conduct by the Executive, any knowing or intentional violation of law by the Executive, or any fraud or breach of fiduciary duty by the Executive (“Retained Claims”). Notwithstanding anything contained herein to the contrary, this release does not include (and the Company does not release) any Retained Claims, any claim for breach of this Agreement or any confidentiality, non-solicitation or non-competition agreement signed by the Executive, or any claims arising after this date.
3.04 In addition to signing this Transition Agreement and as an additional condition to receiving the Separation Sum and other consideration provided for in this Transition Agreement, Xxxxxx will execute and deliver to the Company the Separation Agreement and Full and Final Release (“Separation Agreement”) in the form attached hereto as Exhibit A after his Last Day of Employment, but before 5:00 CDT on April 7, 2018.
3.05 If Xxxxxx accepts and signs the Separation Agreement and does not revoke the release of claims under the Age Discrimination in Employment Act (“ADEA”) and the Older Workers Benefit Protection Act (“OWBPA”), and:
(a) further acknowledges and understands that this refers to rights or claims under the ADEA;
(b) acknowledges that this waiver of rights or claims under the ADEA is in writing and is understood by Xxxx;
(c) expressly understands that by signing this Agreement, Xxxx is not waiving any rights or claims that may arise after the date this document is signed;
(d) acknowledges that this waiver of any rights or claims arising under the ADEA is in exchange for payment of the Separation Sum, which exceeds that to which Xxxx is otherwise entitled;
(e) acknowledges that Aegion has expressly advised him/her to consult an attorney of Xxxx’x choosing prior to signing this Agreement;
(f) acknowledges that Xxxx was also given a period of time not less than forty-five (45) days within which to consider this Agreement; and
(g) acknowledges that Xxxx has been advised by Aegion that in the event Xxxx signs this Agreement, Xxxx is entitled to revoke his waiver of rights or claims arising under the ADEA within seven (7) days after signing this Agreement by delivering a written notice of revocation to Xx. Xxxxxxxx and that said waiver will not and does not become effective or enforceable until the seven (7) day revocation period has expired.
3.03 If Xxxx accepts and signs this Agreement and does not revoke the release of claims under the ADEA as described in Paragraph 3.02(g)3.03(g) of the Separation Agreement, then Aegion shall pay the first installment of the Separation Sum, less all withholding amounts required by law, with the first payroll following the expiration of the revocation periodperiod described in Paragraph 3.03(g) of the Separation Agreement. The remainder of the severance will be paid on a pro rata basis with regularly scheduled payroll for a total period of fifteen eighteen (1518) months, inclusive of the date of the first installment. However, should Xxxx Xxxxxx revoke his waiver of his rights and claims under the ADEA during the revocation period such that Aegion does not receive a full release and such that Xxxx Xxxxxx could pursue claims and rights under the ADEA, the amount of the Separation Sum shall be reduced to the amount of One Ten Thousand Dollars and Zero Cents ($1,000.0010,000.00), less withholdings required by law, to be paid with the first payroll following Xxxx’x Xxxxxx’x revocation. In addition, the Executive shall continue to be entitled to all rights of indemnification provided to officers of the Company to the same extent as other officers of the Company.
3.04 3.06 If Xxxx Xxxxxx accepts and signs this the Separation Agreement and does not revoke the release of claims under the ADEA as described in Paragraph 3.02(g)) of the Separation Agreement, and Xxxx Xxxxxx elects to continue his group health insurance coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) and takes all necessary actions to elect such coverage, then, for the coverage period that coincides with his severance paymentspayments and for the coverage level effective as of the date of this Transition Agreement, Xxxx’x Xxxxxx’x COBRA premium shall be reduced to his normal employee contribution rate. After the Severance Period expires, Xxxx Xxxxxx shall be responsible for paying the full amount of the COBRA premium, in the event he elects to continue COBRA coverage.
3.05 If Xxxx accepts and signs this Agreement and does not revoke the release of claims under the ADEA as described in Paragraph 3.02(g), then 3.07 Aegion will pay directly to a vendor of Xxxx’x the Company’s choice up to Fifteen Thousand Dollars and Zero Cents ($15,000.00) for outplacement services for Xxxxthe Executive.
3.06 Xxxx’x 3.08 Xxxxxx’x rights to the 2015 restricted stock unit and performance unit awards issued to Xxxxxx via the 2015 Restricted Stock Unit Agreement and 2015 Performance Unit Agreement (“2015 Equity Agreements”), respectively, will remain outstanding, provided that the Executive remains employed by the Company through February 18, 2018, and such awards will vest in accordance with the terms of the 2015 Equity Agreements. If the Executive remains employed by the Company through March 31, 2018, Xxxxxx’x rights to the 2016 restricted stock unit awards issued to Xxxx during his employment with Aegion Xxxxxx via the 2016 Restricted Stock Unit Agreement will be treated as if he the Executive were terminated without cause. Xxxx Xxxxxx acknowledges that, pursuant to the terms of the 2015 2016 Restricted Stock Unit Agreement, 30/36 25/36 of the restricted stock units granted to him via that agreement will vest and he will forfeit the remaining 6/36 11/36 of the awarded restricted stock unitsunits if the Executive remains employed by the Company through March 31, 2018. Xxxx also acknowledges that, pursuant to the terms of the 2016 Restricted Stock Unit Award Agreement, 18/36 of the restricted stock units granted to him via that agreement will vest and he will forfeit the remaining 18/36 of the awarded restricted stock units. Xxxx acknowledges that, pursuant to the terms of his The 2017 Restricted Stock Unit Award Agreement, 2016 Performance Unit Agreement, and 2017 Performance Unit Agreement entered into between the Company and the Executive are expressly terminated effective November 18, 2017.
3.09 If the Executive remains employed with the Company through March 31, 2018, the Executive’s rights under the currently exercisable stock options granted to him in 2012 will be treated as if the Executive were terminated without cause, and the Executive will have until June 29, 2018 to exercise those options. The Executive acknowledges that he must exercise the stock options granted to him in 2011 by January 19, 2018, which is the expiration date of those options. The Executive’s rights to exercise the options granted to him will be in accordance with the terms of each agreement.
3.10 Simultaneous with the execution of this Transition Agreement, the Executive shall sign and submit the resignation letter attached hereto as Exhibit B.
3.11 From November 18, 2017 through the Last Day of Employment, the Executive will serve as a “Special Advisor” of the Company, reporting to the Interim Chief Financial Officer of the Company. The Company shall pay the Executive at a rate of Ten Thousand Dollars and Zero Cents ($10,000.00) per month, less all withholding amounts required by law, while he is serving as a Special Advisor. While the Executive is serving as a Special Advisor, he shall have the option of continuing to participate in the Company’s group health plan, 401(k) plan, and all other benefits for which he was eligible prior to November 18, 2017, and will continue to accrue paid time off through March 31, 2018, as if there were no break or change in his terms of service; however, the Executive agrees that, when his employment terminates on or before March 31, 2018, he will forfeit all restricted stock units issued have a zero balance of paid time off. The Executive agrees that during the remaining period of his employment, he shall assist with the transition of his duties to him pursuant his successor as reasonably requested by the Company and, commensurate with the Executive’s qualifications and historical responsibilities, generally assist with the transition of the business operations of the Company in preparation for his departure. As a Special Advisor, the Executive shall be expected to that agreement. All performance unit award agreementsprovide services to the Company, whether they be cash or stock, are expressly terminated by this Agreementon average of not less than ten (10) hours per week at such times and in such locations as the Company shall specify.
3.07 3.12 During the Severance Transition Period, Xxxx the Executive shall cooperate with Aegion the Company in the transition of Xxxx’x the Executive’s duties, including but not limited to answering questions and providing information related to the performance of Xxxx’x the Executive’s job duties as they existed during his employment with Aegionthe Company. Xxxx The Executive shall also cooperate with Aegion the Company in the event that Aegion is a party to litigation or other proceeding for which Xxxx the Executive may have relevant information, evidence or testimony, and Aegion the Company shall reimburse Xxxx the Executive for any lost wages, compensation compensation, and benefits, and any reasonable expenses or costs he incurs with respect thereto.
3.08 Xxxx shall retain as his property the laptop computer3.13 On March 31, cell phone2018, and tablet he used while employed by Aegion, provided that Aegion shall remove all data from the laptop, cell phone, and tablet before transferring ownership to Xxxx. Xxxx Xxxxxx shall return all other Aegion property in his possessionproperty, including but not limited to laptops, cell phones, tablets, passwords, keys, badges, documents, credit cards, reimbursement for advanced paid time off that was not earned and/or accrued by the Last Day of Employment, and documentsany other advanced and unearned compensation.
3.09 Xxxx 3.14 Xxxxxx represents, warrants, and agrees that he has not suffered any work-related injury for which he has not already filed a report with or Claim against Aegion; that Xxxx Xxxxxx has been paid all wages earned at AegionAegion through November 15, 2017; that Xxxx Xxxxxx is not aware of any existing or threatened claims, charges, or lawsuits that he has not disclosed to Aegion; that Xxxx Xxxxxx does not have any legal reasons-including bankruptcies-that prevent him from fully releasing and waiving all Claims; and that Xxxx Xxxxxx has not sold, assigned, transferred or otherwise conveyed to any third party any of his rights, Claims, actions or demands of any nature whatsoever relating to any matter referenced in this Transition Agreement. Xxxx Xxxxxx acknowledges receipt of all salary, bonuses, incentive awards, accrued paid time off, benefit plan entitlements and other benefits (except any unpaid vested retirement benefits, if any) to which he was or could be entitled by virtue of employment with Aegion the Company as of the date of this AgreementTransition Date. Xxxx acknowledges that, as of Employment Separation Date, he has used all accrued paid time off and Aegion does not owe him payment of any accrued and unused paid time off. Xxxx representXxxxxx represents, warrants, and agrees that he has been given an adequate opportunity to advise Aegionthe Company’s human resources, legal, or other relevant management division, and have so advised such division in writing, of any facts that he is aware of that constitute or might constitute a violation of any ethical, legal, or contractual standards or obligations of Aegion.
3.10 Except for the Retained Claims, Aegion releases Xxxx from any Claim against Xxxx and waives any right to xxx Xxxx for legal or equitable relief, or both, on any Claim against Xxxx arising out of or in connection with any act or omission of Xxxx committed or omitted as an officer or employee of Aegion in the course and scope of his duties prior to the date of this Agreement. This Section 3.10 is not a release of Xxxx’x obligations under this Agreement.
3.11 Xxxx 3.15 Xxxxxx shall avoid any one or more of interference with, disparagement of, or harm to Aegion, and/or Aegion’ ’s employees, clients, services and services, and/or suppliers. Aegion Corporation will direct its directors and executive officers to not denigrate, disparage, or make any derogatory or negative statements about Xxxx Xxxxxx to others outside Aegion, or instruct anyone else to do so. Nothing in this Section 3.11 3.15 shall prevent either Party from Xxxxxx xxxx giving truthful testimony or information to law enforcement entities, administrative agencies, or courts or in any other legal proceedings as required by law, including, but not limited to, assisting in an investigation or proceeding brought by any governmental or regulatory body or official related to alleged violations of any law relating to fraud or any rule or regulation of the Securities and Exchange Commission, or from making any truthful statements or comments in connection with any securities filings or in order to comply with any obligations under federal, state or local laws (including without limitation, any federal securities laws).
3.12 By entering into 3.16 During the Transition Period, the Company may terminate the Executive’s employment immediately for “Cause.” For purposes of this Transition Agreement, neither “Cause” means any one or more of the following: (a) the Executive’s material breach of this Transition Agreement; (b) the Executive’s failure to perform his duties (other than such failure resulting from incapacity due to physical or mental illness); (c) the Executive’s failure to comply with any valid and legal directive of Aegion; (d) the Executive’s engagement in dishonesty, illegal conduct, misconduct, or gross negligence that is demonstrably and materially injurious to Aegion nor Xxxx admits liability monetarily or otherwise; (e) the Executive’s embezzlement, misappropriation, or fraud, whether or not related to the other Party. The PartiesExecutive’s employment with Aegion; (f) the Executive’s engaging in egregious misconduct involving serious moral turpitude; (g) the Executive’s violation of a material policy of Aegion; or (h) the Executive’s material failure to comply with Aegion’s written policies or rules, by as they may be in effect from time to time; provided, that the Company may not terminate the Executive’s employment for Cause under clause (a), (b), (g) or (h) of this Agreementparagraph unless 1) the Company first provides the Executive with a written notice and description of the issue and the Executive fails to cure the issue within ten (10) days following such written notice, have compromised any existing or potential Claim each has against and 2) the other Party, except issue leading to the termination for Cause can be remedied during the Retained Claimsnotice and cure period. In so doingthe event that Aegion terminates the Executive’s employment for Cause during the Transition Period, Aegion and Xxxx each intends to extinguish all rights and liabilities concerning any Claim by one Party against the other Party. Nothing herein is deemed to extinguish any rights or of Aegion’s obligations of a Party pursuant to this AgreementTransition Agreement are null and void. The Company will not terminate the Executive’s employment with the Company without Cause prior to April 1, 2018.
Appears in 1 contract
Samples: Transition Agreement and Full Release (Aegion Corp)
Rights and Duties of the Parties. 3.01 Xxxx Xxxxxx releases Aegion and all other persons and entities from any Claim against Aegion and waives any right of his to xxx Aegion for legal or equitable relief, or both, on any Claim against Aegion. In addition, and without limiting the generality of the foregoing, and except as otherwise prohibited by law, the release and the waiver in this paragraph apply to any one or more of the following specific matters:
(a) Xxxx’x the Executive’s employment with Aegionthe Company;
(b) the termination of Xxxx’x the Executive’s employment with Aegionthe Company;
(c) any policy, practice, decision, promise, agreement, conduct, act or omission by Aegion prior to this date;
(d) any compensation, benefit, or benefit plan associated with Xxxx’x the Executive’s employment with Aegionthe Company, including but not limited to compensation, benefits and benefit plans governed by the Employee Retirement Income Security act of 1974 (“ERISA”); and/or
(e) any transaction, occurrence, act, or omission concerning or arising from either Xxxx’x the Executive’s employment with Aegion the Company or the termination of that employment, or both. Nothing The Executive has the right under U.S. federal law to certain protections for cooperating with or reporting legal violations to various governmental entities. No provisions in this Transition Agreement prevents Xxxx are intended to prohibit the Executive from disclosing this Transition Agreement to, or from cooperating with or reporting violations to, any such governmental entity, and the Executive may do so without disclosure to the Company. The Company may not retaliate against the Executive for any of these activities, and nothing in this Transition Agreement would require Xxxxxx to waive any monetary award or other payment that he might become entitled to from any such governmental entity. Further, nothing in this Transition Agreement precludes the Executive from filing a charge of discrimination with the Equal Employment Opportunity CommissionCommission or a like charge or complaint with a state or local fair employment practice agency. However, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission (“SEC”) Xxxxxx may not receive a monetary award or any other administrative agency if applicable law requires that Xxxx be permitted to do so. However, in executing this Agreement, Xxxx is waiving form of personal relief from the right to any monetary recovery Company in connection with any such charge or complaint that the Executive has filed or charge that Xxxx may file with an administrative agencyis filed on the Executive’s behalf. Notwithstanding anything contained herein to the contrary, except that this Agreement release does not limit Xxxx’x include (and the Executive does not release) the following: (i) any claims arising out of or related to the rights of the Executive set forth in the Transition Agreement or this Separation Agreement (such as right to receive payment of the Separation Sum), and (ii) rights to indemnification for third-party claims against the Executive arising out of his service as an award for information provided employee, officer, or director of Aegion, to the SEC extent those rights are conferred via the Company’s Amended and Restated Certificate of Incorporation, as amended, and/or other administrative agencies concerning a possible securities law violationTitle 8, Section 154 of the Delaware General Corporation Law (“Permitted Claims”).
3.02 The Executive has not filed and, subject to Section 3.01, agrees not to initiate or cause to be initiated on his behalf, any complaint, charge, claim, or proceeding against Aegion before any local, state, or federal agency, court, or other body relating to the Executive’s employment or the termination of his employment (each, individually, a “Proceeding”), and agrees not to participate voluntarily in any Proceeding. Xxxxxx hereby waives, subject to Section 3.01, any right he may have to benefit in any manner from any relief (whether monetary or otherwise) arising out of any Proceeding.
3.03 By executing this document, Xxxx Xxxxxx expressly waives any and all rights or claims arising under the Age Discrimination in Employment Act (“ADEA”) and the Older Workers Benefit Protection Act (“OWBPA”), and:
(a) further acknowledges and understands that this refers to rights or claims under the ADEA;
(b) acknowledges that this waiver of rights or claims under the ADEA is in writing and is understood by XxxxXxxxxx;
(c) expressly understands that by signing this Separation Agreement, Xxxx Xxxxxx is not waiving any rights or claims that may arise after the date this document is signed;
(d) acknowledges that this waiver of any rights or claims arising under the ADEA is in exchange for payment of the Separation Sum, which exceeds that to which Xxxx Xxxxxx is otherwise entitled;
(e) acknowledges that Aegion the Company has expressly advised him/her Xxxxxx to consult an attorney of Xxxx’x Xxxxxx’x choosing prior to signing this Separation Agreement;
(f) acknowledges that Xxxx Xxxxxx was also given a period of time not less than fortytwenty-five one (4521) days within which to consider this Separation Agreement; and
(g) acknowledges that Xxxx Xxxxxx has been advised by Aegion the Company that in the event Xxxx Xxxxxx signs this Separation Agreement, Xxxx Xxxxxx is entitled to revoke his waiver of rights or claims arising under the ADEA within seven (7) days after signing this Separation Agreement by delivering a written notice of revocation to Xx. Xxxxxxxx and that said waiver will not and does not become effective or enforceable until the seven (7) day revocation period has expired.
3.03 3.04 The Company hereby releases, gives up and waives any and all known and unknown rights, causes of action, lawsuits and claims for liability the Company may now or in the future have against the Executive in any way arising out of, based upon or relating to (i) the Executive’s employment with the Company or any of its subsidiaries, or the termination of or resignation from such employment, (ii) any promise, policy, agreement, action or conduct of the Executive to date, or (iii) any fact occurring prior to this date, except for rights, claims, causes of action and claims for liability against the Executive in any way based on any criminal conduct by the Executive, any knowing or intentional violation of law by the Executive, or any fraud or breach of fiduciary duty by the Executive (“Retained Claims”). Notwithstanding anything contained herein to the contrary, this release does not include (and the Company does not release) any Retained Claims, any claim for breach of this Agreement or any confidentiality, non-solicitation or non-competition agreement signed by the Executive, or any claims arising after this date.
3.05 If Xxxx Xxxxxx accepts and signs this Separation Agreement and does not revoke the release of claims under the ADEA as described in Paragraph 3.02(g)3.03(g) of this Separation Agreement, then Aegion the Company shall pay the first installment of the Separation Sum, less all withholding amounts required by law, with the first payroll following the expiration of the revocation periodperiod described in Paragraph 3.03(g) of this Separation Agreement. The remainder of the severance will be paid on a pro rata basis with regularly scheduled payroll for a total period of fifteen eighteen (1518) months, inclusive of the date of the first installment. However, should Xxxx Xxxxxx revoke his waiver of his rights and claims under the ADEA during the revocation period such that Aegion does not receive a full release and such that Xxxx Xxxxxx could pursue claims and rights under the ADEA, the amount of the Separation Sum shall be reduced to the amount of One Ten Thousand Dollars and Zero Cents ($1,000.0010,000.00), less withholdings required by law, to be paid with the first payroll following Xxxx’x Xxxxxx’x revocation. In addition, the Executive shall continue to be entitled to all rights of indemnification provided to officers of the Company to the same extent as other officers of the Company.
3.04 3.06 If Xxxx Xxxxxx accepts and signs this Separation Agreement and does not revoke the release of claims under the ADEA as described in Paragraph 3.02(g), and Xxxx Xxxxxx elects to continue his group health insurance coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) and takes all necessary actions to elect such coverage, then, for the coverage period that coincides with his severance payments, Xxxx’x Xxxxxx’x COBRA premium shall be reduced to his normal employee contribution rate. After the Severance Period expires, Xxxx Xxxxxx shall be responsible for paying the full amount of the COBRA premium, in the event he elects to continue COBRA coverage.
3.05 3.07 If Xxxx the Executive accepts and signs this Separation Agreement and does not revoke the release of claims under the ADEA as described in Paragraph 3.02(g), then Aegion will pay directly to a vendor of Xxxx’x the Company’s choice up to Fifteen Thousand Dollars and Zero Cents ($15,000.00) for outplacement services for Xxxxthe Executive.
3.06 Xxxx’x rights to the 2015 and 2016 restricted stock unit awards issued to Xxxx during his employment with Aegion will be treated as if he were terminated without cause. Xxxx acknowledges that, pursuant to the terms of the 2015 Restricted Stock Unit Agreement, 30/36 of the restricted stock units granted to him via that agreement will vest and he will forfeit the remaining 6/36 of the awarded restricted stock units. Xxxx also acknowledges that, pursuant to the terms of the 2016 Restricted Stock Unit Award Agreement, 18/36 of the restricted stock units granted to him via that agreement will vest and he will forfeit the remaining 18/36 of the awarded restricted stock units. Xxxx acknowledges that, pursuant to the terms of his 2017 Restricted Stock Unit Award Agreement, he will forfeit all restricted stock units issued to him pursuant to that agreement. All performance unit award agreements, whether they be cash or stock, are expressly terminated by this Agreement.
3.07 During the Severance Period, Xxxx shall cooperate with Aegion in the transition of Xxxx’x duties, including but not limited to answering questions and providing information related to the performance of Xxxx’x job duties as they existed during his employment with Aegion. Xxxx shall also cooperate with Aegion in the event that Aegion is a party to litigation or other proceeding for which Xxxx may have relevant information, evidence or testimony, and Aegion shall reimburse Xxxx for any lost wages, compensation and benefits, and any reasonable expenses or costs he incurs with respect thereto.
3.08 Xxxx shall retain as his property the laptop computer, cell phone, and tablet he used while employed by Aegion, provided that Aegion shall remove all data from the laptop, cell phone, and tablet before transferring ownership to Xxxx. Xxxx shall return all other Aegion property in his possession, including keys, badges, and documents.
3.09 Xxxx represents, warrants, and agrees that he has not suffered any work-related injury for which he has not already filed a report with or Claim against Aegion; that Xxxx has been paid all wages earned at Aegion; that Xxxx is not aware of any existing or threatened claims, charges, or lawsuits that he has not disclosed to Aegion; that Xxxx does not have any legal reasons-including bankruptcies-that prevent him from fully releasing and waiving all Claims; and that Xxxx has not sold, assigned, transferred or otherwise conveyed to any third party any of his rights, Claims, actions or demands of any nature whatsoever relating to any matter referenced in this Agreement. Xxxx acknowledges receipt of all salary, bonuses, incentive awards, accrued paid time off, benefit plan entitlements and other benefits (except any unpaid vested retirement benefits, if any) to which he was or could be entitled by virtue of employment with Aegion as of the date of this Agreement. Xxxx acknowledges that, as of Employment Separation Date, he has used all accrued paid time off and Aegion does not owe him payment of any accrued and unused paid time off. Xxxx represent, warrants, and agrees that he has been given an adequate opportunity to advise Aegion’s human resources, legal, or other relevant management division, and have so advised such division in writing, of any facts that he is aware of that constitute or might constitute a violation of any ethical, legal, or contractual standards or obligations of Aegion.
3.10 Except for the Retained Claims, Aegion releases Xxxx from any Claim against Xxxx and waives any right to xxx Xxxx for legal or equitable relief, or both, on any Claim against Xxxx arising out of or in connection with any act or omission of Xxxx committed or omitted as an officer or employee of Aegion in the course and scope of his duties prior to the date of this Agreement. This Section 3.10 is not a release of Xxxx’x obligations under this Agreement.
3.11 Xxxx shall avoid any one or more of interference with, disparagement of, or harm to Aegion, Aegion’ employees, clients, services and suppliers. Aegion Corporation will direct its directors and executive officers to not denigrate, disparage, or make any derogatory or negative statements about Xxxx to others outside Aegion, or instruct anyone else to do so. Nothing in this Section 3.11 shall prevent either Party from giving truthful testimony or information to law enforcement entities, administrative agencies, or courts or in any other legal proceedings as required by law, including, but not limited to, assisting in an investigation or proceeding brought by any governmental or regulatory body or official related to alleged violations of any law relating to fraud or any rule or regulation of the Securities and Exchange Commission, or from making any truthful statements or comments in connection with any securities filings or in order to comply with any obligations under federal, state or local laws (including without limitation, any federal securities laws).
3.12 By entering into this Agreement, neither Aegion nor Xxxx admits liability to the other Party. The Parties, by this Agreement, have compromised any existing or potential Claim each has against the other Party, except for the Retained Claims. In so doing, Aegion and Xxxx each intends to extinguish all rights and liabilities concerning any Claim by one Party against the other Party. Nothing herein is deemed to extinguish any rights or obligations of a Party pursuant to this Agreement.
Appears in 1 contract
Samples: Transition Agreement and Full Release (Aegion Corp)
Rights and Duties of the Parties. 3.01 Xxxx XXXXXXXX releases Aegion and all other persons and entities from any Claim against Aegion and waives any right of his to xxx Aegion for legal or equitable relief, or both, on any Claim against Aegion. In addition, and without limiting the generality of the foregoing, and except as otherwise prohibited by law, the release and the waiver in this paragraph apply to any one or more of the following specific matters:
(a) Xxxx’x XXXXXXXX’x employment with Aegion;
(b) the termination of Xxxx’x XXXXXXXX’x employment with Aegion;
(c) any policy, practice, decision, promise, agreement, conduct, act or omission by Aegion prior to this date;
(d) any compensation, benefit, or benefit plan associated with Xxxx’x XXXXXXXX’x employment with Aegion, including but not limited to compensation, benefits and benefit plans governed by the Employee Retirement Income Security act Act of 1974 (“ERISA”); and/or
(e) any transaction, occurrence, act, or omission concerning or arising from either Xxxx’x XXXXXXXX’x employment with Aegion or the termination of that employment, or both. Nothing Notwithstanding the foregoing, nothing in this Agreement shall be a waiver of: (i) your rights under this Agreement, (ii) any claims that cannot be waived by law; or (iii) your right of indemnification as provided by, and in accordance with the terms of, Aegion’s by-laws or an Aegion insurance policy providing such coverage, as any of such may be amended from time to time for executives and directors generally as well as XXXXXXXX’x right, which Aegion hereby confirms, to be included in any release of claims against officers and directors of Aegion generally that applies to the time period in which XXXXXXXX served Aegion in any capacity. In addition, nothing in this Agreement prevents Xxxx XXXXXXXX from filing a charge with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission (“SEC”) or any other administrative agency if applicable law requires that Xxxx XXXXXXXX be permitted to do so. However, in executing this Agreement, Xxxx XXXXXXXX is waiving the right to any monetary recovery in connection with any such complaint or charge that Xxxx XXXXXXXX may file with an administrative agency, except that this Agreement does not limit Xxxx’x XXXXXXXX’x right to receive an award for information provided to the SEC and/or other administrative agencies concerning a possible securities law violation.
3.02 By executing this document, Xxxx XXXXXXXX expressly waives any and all rights or claims arising under the Age Discrimination in Employment Act (“ADEA”) and the Older Workers Benefit Protection Act (“OWBPA”), and:
(a) further acknowledges and understands that this refers to rights or claims under the ADEA;
(b) acknowledges that this waiver of rights or claims under the ADEA is in writing and is understood by XxxxXXXXXXXX;
(c) expressly understands that by signing this Agreement, Xxxx XXXXXXXX is not waiving any rights or claims that may arise after the date this document is signed;
(d) acknowledges that this waiver of any rights or claims arising under the ADEA is in exchange for payment of the Separation Sum, which exceeds that to which Xxxx XXXXXXXX is otherwise entitled;
(e) acknowledges that Aegion has expressly advised him/her him to consult an attorney of Xxxx’x XXXXXXXX’x choosing prior to signing this Agreement;
(f) acknowledges that Xxxx XXXXXXXX was also given a period of time not less than fortytwenty-five one (4521) days within which to consider this Agreement; and;
(g) acknowledges that Xxxx XXXXXXXX has been advised by Aegion that in the event Xxxx XXXXXXXX signs this Agreement, Xxxx XXXXXXXX is entitled to revoke his waiver of rights or claims arising under the ADEA within seven (7) days after signing this Agreement by delivering a written notice of revocation to Xx. Xxxxxxxx and that said waiver will not and does not become effective or enforceable until the seven (7) day revocation period has expired; and
(h) acknowledges that this waiver has not been requested in connection with an exit incentive or employment termination program.
3.03 If Xxxx XXXXXXXX accepts and signs this Agreement and does not revoke the release of claims under the ADEA, Aegion will commence payments of the Separation Sum on the first regular Aegion payday following February 28, 2020 and the expiration of the revocation period.
3.04 If XXXXXXXX accepts and signs this Agreement and does not revoke the release of claims under the ADEA as described in Paragraph 3.02(g), then Aegion shall pay the first installment of the Separation Sum, less all withholding amounts required by law, with the first payroll following the expiration of the revocation period. The remainder of the severance will be paid on a pro rata basis with regularly scheduled payroll for a total period of fifteen (15) months, inclusive of the date of the first installment. However, should Xxxx revoke his waiver of his rights and claims under the ADEA during the revocation period such that Aegion does not receive a full release and such that Xxxx could pursue claims and rights under the ADEA, the amount of the Separation Sum shall be reduced to the amount of One Thousand Dollars and Zero Cents ($1,000.00), less withholdings required by law, to be paid with the first payroll following Xxxx’x revocation.
3.04 If Xxxx accepts and signs this Agreement and does not revoke the release of claims under the ADEA as described in Paragraph 3.02(g)herein, and Xxxx XXXXXXXX elects to continue his group health insurance coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) COBRA and takes all necessary actions to elect such coverage, then, for the coverage period that coincides with his severance payments, Xxxx’x XXXXXXXX’x COBRA premium shall be reduced to the contribution rate paid by XXXXXXXX for his normal employee contribution rategroup health insurance election as of the Employment Termination Date. After the Severance Period severance period expires, Xxxx XXXXXXXX shall be responsible for paying the full amount of the COBRA premium, in the event he elects to continue COBRA coverage.
3.05 If Xxxx XXXXXXXX accepts and signs this Agreement and does not revoke the release of claims under the ADEA as described in Paragraph 3.02(g), then Aegion will pay directly to a vendor of Xxxx’x choice up to Fifteen Thousand Dollars and Zero Cents ($15,000.00) to a vendor of Aegion’s choice for outplacement services for XxxxXXXXXXXX.
3.06 Xxxx’x rights to If XXXXXXXX accepts and signs this Agreement, does not revoke the 2015 release of claims under the ADEA as described in Paragraph 3.02(g) and 2016 restricted stock unit awards issued to Xxxx during his employment with is otherwise eligible for a payout under the 2019 Aegion Annual Incentive Plan (“AIP”) for the 2019 Plan Year, Aegion will be treated as if pay XXXXXXXX the full amount of the payout to which he were terminated without cause. Xxxx acknowledges that, pursuant to is entitled in accordance with the terms of the 2015 Restricted Stock Unit Agreement, 30/36 of 2019 AIP Plan Document. Any 2019 AIP payout to XXXXXXXX will be paid on the restricted stock units granted to him via that agreement will vest and he will forfeit the remaining 6/36 of the awarded restricted stock units. Xxxx also acknowledges that, pursuant to the terms of the 2016 Restricted Stock Unit Award Agreement, 18/36 of the restricted stock units granted to him via that agreement will vest and he will forfeit the remaining 18/36 of the awarded restricted stock units. Xxxx acknowledges that, pursuant to the terms of his 2017 Restricted Stock Unit Award Agreement, he will forfeit all restricted stock units issued to him pursuant to that agreement. All performance unit award agreements, whether they be cash or stock, are expressly terminated by this Agreement.
3.07 During the Severance Period, Xxxx shall cooperate with Aegion in the transition of Xxxx’x duties, including but not limited to answering questions and providing information related to the performance of Xxxx’x job duties as they existed during his employment with Aegion. Xxxx shall also cooperate with Aegion in the event that Aegion is a party to litigation or other proceeding for which Xxxx may have relevant information, evidence or testimony, and Aegion shall reimburse Xxxx for any lost wages, compensation and benefits, and any reasonable expenses or costs he incurs with respect thereto.
3.08 Xxxx shall retain as his property the laptop computer, cell phone, and tablet he used while employed by Aegion, provided that Aegion shall remove all data from the laptop, cell phone, and tablet before transferring ownership to Xxxx. Xxxx shall return same date all other Aegion property 2019 AIP payouts are made in his possessionaccordance with the 2019 AIP Plan Document, including keys, badges, and documents.
3.09 Xxxx represents, warrants, and agrees regardless of whether that he has not suffered any work-related injury for which he has not already filed a report with or Claim against Aegion; that Xxxx has been paid all wages earned at Aegion; that Xxxx payout date is not aware of any existing or threatened claims, charges, or lawsuits that he has not disclosed to Aegion; that Xxxx does not have any legal reasons-including bankruptcies-that prevent him from fully releasing and waiving all Claims; and that Xxxx has not sold, assigned, transferred or otherwise conveyed to any third party any of his rights, Claims, actions or demands of any nature whatsoever relating to any matter referenced in this Agreement. Xxxx acknowledges receipt of all salary, bonuses, incentive awards, accrued paid time off, benefit plan entitlements and other benefits (except any unpaid vested retirement benefits, if any) to which he was or could be entitled by virtue of employment with Aegion as of the date of this Agreement. Xxxx acknowledges that, as of Employment Separation Date, he has used all accrued paid time off and Aegion does not owe him payment of any accrued and unused paid time off. Xxxx represent, warrants, and agrees that he has been given an adequate opportunity to advise Aegion’s human resources, legal, or other relevant management division, and have so advised such division in writing, of any facts that he is aware of that constitute or might constitute a violation of any ethical, legal, or contractual standards or obligations of Aegion.
3.10 Except for the Retained Claims, Aegion releases Xxxx from any Claim against Xxxx and waives any right to xxx Xxxx for legal or equitable relief, or both, on any Claim against Xxxx arising out of or in connection with any act or omission of Xxxx committed or omitted as an officer or employee of Aegion in the course and scope of his duties prior subsequent to the date of this Agreement. This Section 3.10 is not a release of Xxxx’x obligations under this AgreementEmployment Termination Date.
3.11 Xxxx shall avoid any one or more of interference with, disparagement of, or harm to Aegion, Aegion’ employees, clients, services and suppliers. Aegion Corporation will direct its directors and executive officers to not denigrate, disparage, or make any derogatory or negative statements about Xxxx to others outside Aegion, or instruct anyone else to do so. Nothing in this Section 3.11 shall prevent either Party from giving truthful testimony or information to law enforcement entities, administrative agencies, or courts or in any other legal proceedings as required by law, including, but not limited to, assisting in an investigation or proceeding brought by any governmental or regulatory body or official related to alleged violations of any law relating to fraud or any rule or regulation of the Securities and Exchange Commission, or from making any truthful statements or comments in connection with any securities filings or in order to comply with any obligations under federal, state or local laws (including without limitation, any federal securities laws).
3.12 By entering into this Agreement, neither Aegion nor Xxxx admits liability to the other Party. The Parties, by this Agreement, have compromised any existing or potential Claim each has against the other Party, except for the Retained Claims. In so doing, Aegion and Xxxx each intends to extinguish all rights and liabilities concerning any Claim by one Party against the other Party. Nothing herein is deemed to extinguish any rights or obligations of a Party pursuant to this Agreement.
Appears in 1 contract
Samples: Separation Agreement (Aegion Corp)
