SEPARATION AGREEMENT AND RELEASE
Exhibit 10.1
AGREEMENT made as of the 22nd day of July 2010, by Xxxx X. Xxxxxxxxx (“Executive”) and
Sensient Technologies Corporation (the “Company”).
WHEREAS Executive’s employment as President and Chief Operating Officer of the Company will
terminate on July 22, 2010 (the “Separation Date”); and
WHEREAS Executive and the Company desire to resolve all aspects of the employment relationship
between them and to provide in writing for the payment of certain compensation and benefits to
Executive.
NOW, THEREFORE, IN CONSIDERATION OF the mutual promises hereinafter set forth, the sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. Effective Date. This Agreement will become effective only upon expiration of the
revocation period described in Section 18 hereof (the “Effective Date”).
2. Compensation and Benefits. Subject to Executive’s compliance with the terms and
conditions hereof, the Company will provide the following compensation and benefits to Executive:
2.1 Compensation. For the 12 month period beginning on July 23, 2010 (the
“Compensation Period”), the Company will make payments to Executive at the
Semi-monthly rate of Seventeen Thousand Six Hundred Twenty Five dollars
($17,625.00). Payments will be made in accordance with the Company’s standard
payroll practices.
2.2 Management Incentive Plan. Executive will be eligible to participate in
the fiscal 2010 Management Incentive Plan, if any. The Management Incentive Plan
amount to be paid hereunder shall be calculated in accordance with the Company’s
normal practices, and shall be paid to Executive in February 2011. Executive shall
not be eligible to participate in the Management Incentive Plan for any period
following the Separation Date.
2.3 Benefits. During the Compensation Period, Executive and his eligible
dependents may elect to receive medical, dental and vision coverage at the employee
rate, with the balance of the eighteen-month period after the Separation Date at the
non-employee rate, in accordance with the provisions of the
Consolidated Omnibus Budget Reconciliation Act (“COBRA”). Except as otherwise
expressly provided in this Agreement or required by applicable law or regulation,
Executive’s participation in all Company sponsored or maintained benefit programs,
including without limitation expatriate housing and tuition allowance and any
eligibility for or participation in, the Company’s relocation program, terminated on
the Separation Date.
2.4 UK Pension Scheme. Executive will not be eligible to participate in the
Company’s contributions to the UK Pension Scheme after the Separation Date.
2.5 Change of Control Agreement. The Change of Control and Severance
Agreement between the Company and Executive will be deemed terminated as of the
Separation Date.
2.6 Automobile. The Company will transfer to Executive clear title to the
automobile previously leased by the Company and provided to him for his use, if so
requested by Executive and upon payment by Executive to the Company of an amount
equal to the automobile’s fair market value as determined by the Company. If
Executive does not wish to purchase the automobile, he will return it to the Company
on or before July 30, 2010.
2.7 Stock Options and Restricted Stock. Executive will retain his vested
stock options and be eligible to exercise such options in accordance with the
provisions of the applicable stock option plan. Nothing in this Agreement will be
construed to entitle Executive to any further vesting or grants of stock options or
restricted stock after the Separation Date.
2.8 SERP. Executive will not be eligible to participate in, or receive any
benefits under, the Company’s Supplemental Executive Retirement Plan after the
Separation Date.
2.9 Vacation. On the Effective Date, the Company will pay Executive for all
unused and accrued vacation pay. Executive will not be eligible for any vacation
benefit after the Separation Date.
2.10 Outplacement. Executive will also be eligible to receive nine (9)
months of Executive Career Assistance through a mutually agreed upon service
provider.
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| 3. | Deductions. The Company will deduct from payments made under this Agreement any federal, state or local withholdings or other taxes or charges which the Company is from time to time required to deduct under applicable law, and all amounts payable to Executive under this Agreement are stated herein before any such deduction(s). | |
| 4. | Releases. |
4.1 Release by Executive. In consideration of the Company’s agreement to
provide Executive the compensation and benefits described in subsections 2.1 through
2.10 above and the release set forth in subsection 4.2 below, Executive, an adult
individual, for himself, his heirs, personal representatives, successors and
assigns, does hereby remise, release and forever discharge the Company and all of
its past, present and future officers, directors, agents, employees, shareholders,
partners, employee benefit plans, insurers, attorneys, divisions, parent
corporations, subsidiary corporations, affiliated corporations, successors, assigns
and all persons acting by, through, under or in concert with any of them (such
entities and individuals are referred to hereinafter collectively as the “Released
Parties”) of and from any and all manner of action or actions, cause or causes of
action, suits, debts, covenants, contracts, agreements, judgments, executions,
claims, demands and expenses (including attorneys’ fees and costs) whatsoever in law
or equity, whether known or unknown, which he has had, now has or may have against
the Released Parties, or any of them, for or by reason of any transaction, matter,
event, cause or thing whatsoever occurring prior to or on the date of this
Agreement, whether based on tort, express or implied contract, or any federal, state
or local law, statute or regulation, specifically including but not limited to (i)
any and all claims arising out of or related to any employment, change in control or
other agreement (whether oral or written) between Executive and the Company; and
(ii) any and all claims arising out of or related to Executive’s employment with the
Company, including but not limited to claims under the Wisconsin Family and Medical
Leave Act, the Federal Family and Medical Leave Act, the Wisconsin Fair Employment
Act, Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination
in Employment Act of 1967, as amended, the Americans With Disabilities Act, the
Civil Rights Act of
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1991, and the Employee Retirement Income Security Act, as amended. Nothing in the
waiver or release set forth in this subsection will be construed to constitute any
waiver or release by Executive of any rights or claims under this Agreement.
4.2 Release by the Company. Subject to the limitations stated herein, the
Company does hereby remise, release and forever discharge Executive of and from any
and all manner of action or actions, cause or causes of action, suits, debts,
covenants, contracts, agreements, judgments, executions, claims, demands and
expenses (including attorneys’ fees and costs) whatsoever in law or equity, whether
known or unknown, which it has had, now has or may have against him, for or by
reason of any transaction, matter, event, cause or thing whatsoever occurring prior
to or on the date of this Agreement, whether based on tort, express or implied
contract, or any federal, state or local law, statute or regulation; provided,
however, that this subsection 4.2 will not constitute a release of Executive by the
Company for any liability (as defined in Wis. Stat. § 180.0850 (4)) incurred because
Executive breached or failed to perform a duty he owed to the Company and the breach
or failure constitutes any of the circumstances described in Wis. Stat. § 180.0851
(2)(a). Nothing in the waiver or release set forth in this subsection will be
construed to constitute any waiver or release by the Company of any rights or claims
under this Agreement.
5. Entire Agreement. This Agreement supersedes all other agreements or understandings
(whether oral or written) between Executive and the Company and constitutes the entire agreement of
the parties. Executive acknowledges and agrees that the compensation and benefits stated above
constitute the sole liability of the Company to him and that he will have no right to receive any
other compensation or benefits of any kind except as expressly set forth in this Agreement.
6. Agreement Not to Xxx. Executive agrees not to initiate or cause to be initiated
any federal, state or local lawsuit or to commence any federal, state or local administrative
action, investigation or proceeding of any kind against the Released Parties, or any of them, based
on any transaction, matter, cause or thing occurring prior to or on the date of this Agreement.
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7. Prohibited Activities. To induce the Company to enter into this Agreement and to
protect the Company from unfair competition, Executive (a) represents and warrants that he did not
engage in any Prohibited Activities prior to the Effective Date, and (b) covenants that he will not
engage in any Prohibited Activities in the future. If Executive engages in Prohibited Activities
at any time, then notwithstanding any other terms of this Agreement, the Company’s duty to provide
the compensation and benefits identified in Section 2 above will automatically terminate and
Executive agrees that he will repay to the Company as liquidated damages an amount equal to all of
the compensation provided to Executive by the Company pursuant to Sections 2.1 and 2.2 between the
date of this Agreement and date of such violation, the parties agreeing that such measure of
liquidated damages is reasonable and appropriate and the amount of the damages the Company would
experience as a result of Executive’s breach of such obligations would not otherwise be readily
calculable. The Company will provide written notice to Executive of such violation. Such remedy
will be in addition to any other remedy to which the Company may be entitled. For the purpose
hereof, “Prohibited Activities” means any (i) violation of the provisions of Section 8 hereof; (ii)
inducement or attempted inducement of any employee, officer, director, sales representative,
consultant or other personnel of the Company, to terminate his or her employment or breach his or
her agreements with the Company; (iii) Disparagement, as defined in Section 19 hereof; or (iv)
Litigation Assistance, as defined in Section 22 hereof.
8. Confidential Information. The parties agree that the Company’s customer lists,
long-range plans, budgets, acquisition strategies, procedures, operations, methods of operation,
pricing, financial performance, techniques, formulas, marketing plans, contemplated product
improvements or new product developments, computer software and programs, proprietary information
and other data relating to aspects of its business (collectively, “Confidential Information”) are
established and protected at great expense and provide the Company with substantial competitive
advantage in conducting its business. The parties further agree that by virtue of Executive’s
employment with the Company, he has had and has access to, and is entrusted with Confidential
Information, and that the Company would suffer great loss and injury if he would disclose this
information or use it to compete with the Company. Therefore, Executive agrees that he will not,
directly or indirectly, either individually or as an employee, officer, agent, partner,
shareholder, owner, trustee, beneficiary, co-venturer, distributor,
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consultant or in any other capacity, use or disclose, or cause to be used or disclosed, any
Confidential Information, without the Company’s consent. The restrictions set forth in this
Section will apply so long as the Confidential Information has not by legitimate means become
generally known and in the public domain.
9. Company Property. Executive agrees that, no later than the Effective Date, he will
exercise best efforts to return to the Company all property of the Company in his possession,
including without limitation Company credit cards, keys, security access cards, and all records,
drawings, manuals, reports, files, memoranda, correspondence, financial data, vendor and customer
lists, papers and documents kept or made by Executive in connection with his employment as an
employee or officer of the Company, as well as any copies thereof, in whatsoever form they may.
Any Company property found by the Executive after the Effective Date will be immediately returned
to the Company.
10. No Admission of Liability. It is understood and agreed that this Agreement is
intended to provide for the amicable separation of Executive from employment with the Company and
that neither this Agreement nor the furnishing of the consideration provided for in this Agreement
will be deemed or construed at any time or for any purpose as an admission of liability by the
Released Parties. Liability for any and all claims for relief is expressly denied by the Released
Parties.
11. Nondisclosure. Executive agrees not to disclose the terms of this Agreement to
any person or entity, other than his spouse, attorney or accountant, without the written consent of
the Company.
12. Acknowledgment. Executive hereby acknowledges and agrees that the compensation
and benefits provided for in this Agreement, including but not limited to the compensation and
benefits described in subsections 2.1 through 2.10 above, are greater than those to which he is
entitled by any contract, employment policy or otherwise. Executive further acknowledges that he
was advised by the Company to consult with an attorney prior to executing this Agreement, and he
was also advised by the Company that he had at least twenty-one (21) days within which to consider
this Agreement.
13. Governing Law and Forum. This Agreement will be governed by and construed under
the laws of the State of Wisconsin without regard to its conflict-of-laws principles. Executive
submits to the exclusive jurisdiction and venue of the state courts located
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in Milwaukee County, Wisconsin and waives any objection to such jurisdiction or venue, including
any objection that Milwaukee County is an inconvenient forum.
14. Notices. Any notice or other communication under this Agreement will be given in
writing and sent by certified or registered mail, postage prepaid, or by FedEx or other overnight
delivery service for next-day delivery, to the following addresses, or such other addresses as the
parties shall provide in accordance with this Section 14:
| (a) | If to Executive, then to: Xxxx X. Xxxxxxxxx [address deleted] | ||
| (b) | If to the Company, then to: Xx. Xxxxxxx X. Xxxxx Vice President — Administration Sensient Technologies Corporation 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000-0000 |
15. Severability. The provisions of this Agreement are severable. If any provision
is adjudged void, unenforceable or contrary to law, it is the intention of the parties that such
provision shall not thereby be terminated, but shall be deemed amended to the extent required to
render it valid and enforceable, such amendment to apply only in the jurisdiction of the court
which has made such adjudication. The balance of the Agreement nonetheless will remain in full
force and effect; provided, however, that if Section 7 of this Agreement is
adjudged void, unenforceable or contrary to law as a result of any action initiated by or on behalf
of Executive, the Company will have the option either to terminate the Agreement in its entirety,
in which case the Company will be entitled to the return of all payments and benefits previously
paid or provided hereunder, or to require that the balance of the Agreement remain in full force
and effect.
16. Voluntary Agreement. Executive acknowledges that he has read this Agreement, that
he is fully aware of its contents and its legal effect, that he understands all of its terms
including the release contained in Section 4.1, that the preceding paragraphs recite the sole
consideration for this Agreement, that all agreements and understandings between the parties are
embodied and expressed herein, and that he has been afforded ample opportunity to consider this
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Agreement and enters into this Agreement freely, knowingly and without coercion and not in reliance
upon any representations or promises made by the Company or its counsel or the Released Parties,
other than those contained herein.
17. Binding Agreement. This Agreement will be binding upon and inure to the benefit
of Executive’s personal or legal representatives and heirs and will be binding upon and inure to
the benefit of the Company’s successors and assigns.
18. Right to Revoke. For a period of seven (7) days following the execution of this
Agreement, Executive may revoke this Agreement, and the Agreement will not become effective or
enforceable until this seven (7) day revocation period has expired.
19. No Disparagement. Executive represents and warrants that he has not heretofore
made any comments to the media or to others in any form, including all internet message postings
and all other written and oral media, that are disparaging, derogatory or detrimental to the good
name or business reputation of any of the Released Parties (“Disparagement”). In return, the
Company agrees that it will take reasonable steps to avoid any of its employees in any way
disparaging the Executive.
20. Post-Employment References. Executive will direct prospective employers seeking
information concerning his employment with the Company to send their inquiries, in writing, to the
attention of Xx. Xxxxxxx X. Xxxxxx, President and Chief Operating Officer. The Company will
respond only to written inquiries and, in accordance with its policy, will limit its response to
Executive’s dates of employment, last position held and final rate of pay. If the Company’s
response to any such inquiry is in writing, a copy of such response will be provided to Executive.
21. No Reemployment or Reinstatement. Executive waives any right to reinstatement to
employment or re-employment with the Company. Executive acknowledges and agrees that neither the
Company nor any of the Released Parties has any contractual or other obligation to rehire, reemploy
or recall him to employment or to otherwise accept application from or consider him for employment
in the future and Executive agrees that he will not apply for employment with the Company or any
Released Party.
22. No Litigation Assistance. Executive represents and warrants that he has not
provided assistance to any person in connection with any claim, lawsuit, administrative charge or
other proceeding brought against any of the Released Parties (“Litigation Assistance”) and that
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he will not do so, unless compelled by court process. Executive represents and warrants that
he is not aware of any such claim or action that has been filed or is going to be filed against the
Company by any present or former employee of the Company or any other party. Executive further
agrees that in the event he is served with any subpoena or other legal process that may require him
to take any action prohibited by Sections 7, 8 or 11 or this Section 22, Executive will within
forty-eight (48) hours give written notice of said fact to the Company, with a copy of the subpoena
or other legal process, and will cooperate with the Company in any lawful effort it makes to block
or limit the enforceability or scope of such subpoena or other process; provided, that notice under
this Section 22 may be given by facsimile with a confirming copy by overnight mail.
23. Headings. The headings herein are for reference purposes only and will not affect
in any way the meaning and interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth
above.
Sensient Technologies Corporation
By: |
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| Vice President — Administration |
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