AGREEMENT
EXHIBIT 10.1
AGREEMENT
THIS AGREEMENT is made and entered into as of the 26th day of November, 2007, by and between
Xxxxxx-Xxxxxxx-Midland Company, a Delaware corporation (the “Company”), and Xxxxxxx X. Xxxx
(“Camp”).
W I T N E S S E T H
WHEREAS, Camp is an employee and officer of the Company; and
WHEREAS, Camp, and the Company have reached an agreement in regard to Camp ceasing to be an
active employee and an officer of the Company as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the covenants as set forth in this
Agreement, and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Camp shall resign as an officer of the Company and retire as an employee effective December
15, 2007. Camp shall be deemed to have taken all earned vacation as of the date of his retirement.
Camp acknowledges that he will not be entitled to receive any form of unemployment compensation or
benefits.
2. Camp shall execute a Release of Claims in the form of Exhibit A, attached hereto and by
this reference incorporated herein (the “Release”). Camp hereby acknowledges the forty-five (45)
day review period provided pursuant to the Older Workers Benefit Protection Act. Camp understands
he may revoke this Agreement and the Release in writing addressed to the Company within seven (7)
days after the execution of this Agreement and Release in which event this Agreement and Release
will be of no force and effect and he will be entitled to no payments or benefits in consideration
hereof.
3. Without the prior written consent of the Company, which consent must be signed by the Chief
Executive Officer or an Executive Vice President of the Company, for a period of twelve (12) months
commencing on December 16, 2007, Camp shall not own any interest in, except the ownership of stock
in a publicly-traded company, take any employment with, or act as a director, consultant, advisor
or in any other capacity whatsoever, directly or indirectly, to any person, corporation,
partnership, limited liability company, joint venture or any other form of entity, anywhere in the
world that is engaged in business that competes with any businesses of the Company that were within
Camp’s scope of responsibilities while employed by the Company. Camp acknowledges that, in view of
his responsibilities while employed by the Company, the scope of this restrictive covenant is
reasonable. Camp further acknowledges that a violation of this restrictive covenant would cause
irreparable damage to the Company and that in the event of a breach or threatened breach the
Company would be entitled to injuctive relief, without the posting of any bond, in addition to such
other relief as may be appropriate at law or in equity.
4. Camp recognizes and agrees that the Company has a legitimate business interest in
restricting potential competitors from hiring Employees who possess or otherwise may have or had
access to the Company’s or any of its affiliates’ confidential information. Therefore, Camp agrees
that for a two (2) year period following the end of his employment, he shall not directly or
indirectly through any other person or entity that provides goods or services to the Company
or any of its affiliates or offers goods or services in competition with the Company or any of its
affiliates, hire, recruit, induce or attempt to induce any Employee to terminate his or her
employment with the Company or any of its affiliates or otherwise interfere in any way with the
employment relationship between the Company or any of its affiliates and their respective
employees. This restriction includes but is not limited to a) identifying Employees as potential
candidates for employment by name, background or qualifications; b) approaching, recruiting or
soliciting Employees; and/or c) participating in any pre-employment interviews with Employees. For
purposes of this provision “Employee” means any employee who has or had access to the Company’s or
any of its affiliates’ confidential information and former employees who have had access to such
confidential information within the preceding twelve (12) months to such activity.
5. The Non-Disclosure Agreement dated September 26, 1991, a copy of which is marked Exhibit B,
attached hereto and by this reference incorporated herein, shall remain in full force and effect in
accordance with its terms.
6.a. As consideration for the release, the covenant not to compete and the other covenants as
set forth in this Agreement, the Company shall: (i) pay Camp, in cash, the sum of Two Million One
Hundred Eleven Thousand Five Hundred Seventy-one dollars ($2,111,571) between January 2 and January
15, 2008; (ii) pay Camp, in cash, a sum equal to fifty percent (50%) of the aggregate difference
between the option strike price and the Fair Market Value of the underlying securities for all
stock options currently held by Camp that will not be vested as of December 15, 2007 and will not
continue to vest under the terms of the granting document in twelve (12) equal monthly installments
commencing January 15, 2008 and each month thereafter with the final payment on December 15, 2008;
and (iii) transfer title to Camp of his Company-owned car on or about December 15, 2007. “Fair
Market Value” shall be the simple average closing price of the common stock of the Company on the
(10) trading days immediately preceding December 15, 2007.
b. Camp shall not be entitled to any other payments or benefits other than as expressly set
forth in this Agreement except those benefits payable pursuant to certain benefit plans of the
Company and the agreements related to previously granted equity-based compensation.
7. The terms and conditions of this Agreement and the payments made pursuant hereto shall
remain confidential and Camp shall not disclose the same to any person, except his immediate
family, lawyer or accountant, or as required by law. Camp shall make no public statements, or
request, cause or solicit any third party to make any public statements, regarding the
circumstances underlying his retirement, that are in any way inconsistent with the terms of this
Agreement, or adverse to the interests or reputation of the Company, or any of its directors,
officers or employees.
8. Camp shall not request or apply for employment with the Company or any of its controlled
subsidiaries.
9. All payments to be made to Camp hereunder shall be subject to all applicable taxes,
including withholding taxes.
10. In the event of the death of Camp prior to all payments contemplated by this Agreement
being made, such remaining payments shall be promptly made to the Xxxxxxx X. Xxxx and Xxxxxx X.
Xxxx Family Trust.
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11. This Agreement shall be governed by the substantive laws of the State of Illinois.
12. This Agreement constitutes the entire agreement of the parties and supersedes any and all
prior agreements and understandings between Camp and the Company, whether oral or in writing. This
Agreement may not be revoked, amended, modified or revised except as provided for in paragraph 2 of
this Agreement or in writing executed by Camp and a corporate officer of the Company.
13. All notices, requests, approvals, demands and other communications required or permitted
to be given under this Agreement shall be in writing and shall be served personally, or sent by a
national overnight delivery company such as Federal Express, or by United States registered or
certified mail, postage prepaid, return receipt requested, and addressed as follows:
If to Company:
Xxxxx X. Xxxxx |
Executive Vice President, Secretary and General Counsel |
Xxxxxx-Xxxxxxx-Midland Company |
X.X. Xxx 0000 |
Xxxxxxx, XX 00000 |
Telephone: (000) 000-0000 |
Facsimile: (000) 000-0000 |
If to Camp:
Xxxxxxx X. Xxxx |
000 Xxxxxxx Xxxxx |
Xxxxxxx, XX 00000-0000 |
Any such notice shall be deemed delivered upon delivery or refusal to accept delivery as indicated
in writing by the person attempting to make personal service, on the United States Postal Service
return receipt, or by similar written advice from the overnight delivery company.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day and year first above
written.
| XXXXXX-XXXXXXX-MIDLAND COMPANY |
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| By: | /s/ X.X. Xxxxx | ||||
| X. X. Xxxxx | |||||
| Executive Vice President | |||||
WITNESS:
|
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/s/ Xxxx Xxx Xxxxxxxxxx
|
By: | /s/ Xxxxxxx X. Xxxx
|
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EXHIBIT A
RELEASE OF CLAIMS
RELEASE OF CLAIMS
KNOW ALL MEN BY THESE PRESENTS, that Xxxxxxx X. Xxxx, a resident of Illinois (“Camp”), has
executed this Release of Claims (the “Release”), as of the 15th day of December, 2007.
ACKNOWLEDGMENTS:
Camp acknowledges that:
[i] He was provided with a copy of this Release and that certain Agreement to which a copy of
this Release is attached as Exhibit A (the “Agreement”) between Camp and Xxxxxx-Xxxxxxx-Midland
Company (“Company”) and was advised in writing to consult with an attorney concerning their meaning
and effect.
[ii] He understands that he may revoke this Release and the Agreement within seven (7) days
after he signs this Release by providing written notice to the Company of the revocation to X. X.
Xxxxx, Xxxxxx-Xxxxxxx-Midland Company, 0000 Xxxxxx Xxxxxxx, Xxxxxxx, XX 00000. In the event Camp
revokes this Release and the Agreement, this Release and Agreement will be of no force and effect
and Camp will be entitled to no payment or benefits that were to be paid in exchange for this
Release pursuant to the Agreement.
[iii] He was given an adequate opportunity to consider this Release and Agreement and he has
read and understands the meaning and effect of this Release and the Agreement.
[iv] He voluntarily agreed to the terms of this Release and the Agreement and intends to be
legally bound by them.
[v] This Release and the Agreement is made for good and sufficient consideration as described
in the Agreement, consideration that Camp is not otherwise entitled to receive, and said
consideration is due only upon the execution and non-revocation of this Release.
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NOW, THEREFORE, for and in the consideration as set forth in the Agreement, Camp hereby
releases and forever discharges the Company, its subsidiaries, divisions and affiliates, and the
directors, officers, agents, and employees, past and present of all such companies (collectively
referred to as “Releasees”), from and for any and all claims, damages or causes of action of any
type (collectively referred to as “Claims”) arising out of or related to Camp’s employment with
Company and the separation of that employment, of which Camp is aware or has a reasonable basis to
be aware, including but not necessarily limited to those Claims arising under any of the following:
the Age Discrimination in Employment Act, 29 U.S.C. §§621, et.seq.; Title VII of the Civil Rights
Act of 1964, 42 ;U.S.C. §2000e et.seq.; the Civil Rights Act of 1866, 42 U.S.C. §1981; the National
Labor Relations Act, 29 ;U.S.C. §§151 et.seq.; the Rehabilitation Act of 1973, 29 U.S.C. §§701,
et.seq.; the Americans With Disabilities Act of 1990, 42 U.S.C. §§12101, et seq.; the Family and
Medical Leave Act, 29 U.S.C. §§2601 et seq.; the WARN Act, 29 U.S.C. §§2101 et seq.; Federal
Executive Order 11246; the Illinois Human Rights Act, the Illinois Wage Payment and Collection Act;
and/or any other federal, state or local statute, law, ordinance, regulation or order.
FURTHER, Camp releases and forever discharges the Releasees from or for any and all other
Claims whatsoever of which Camp is aware or has a reasonable basis to be aware, in law or equity,
of a class or individual nature, arising out of or in connection with Camp’s employment with the
Company or the separation of that employment, including but not limited to those in which Camp
claims, either directly or indirectly, that Camp’s employment with the Company or the termination
or separation of that employment (1) was wrongful; (2) was in retaliation for Camp exercising a
right protected by state and/or national public policy; (3) intentionally and/or negligently
inflicted emotional distress on Camp or any member of Camp’s family; (4) breached an express and/or
implied contract of employment and/or covenant of good faith and fair dealing; or (5) is contrary
to any other xxxxx of common law.
Notwithstanding anything in this Release to the contrary, Camp does not release and discharge
the Company from its obligations under the Agreement, this Release, or any pension or benefit plan
in which he participated as an employee and Camp specifically reserves any and all claims, demands
and causes of
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actions, in law or in equity, in regard thereto. In addition, the parties agree that, to the
extent that any portion of this Release should be ruled defective or unenforceable, the remaining
provisions shall continue to be effective and apply.
This Release shall be binding upon and inure to the benefit of the heirs, executors and
administrators and the predecessors, successors, and assigns of Camp and Company.
IN WITNESS WHEREOF, Camp has executed this Release of Claims as of this 15th day of December,
2007.
| Xxxxxxx X. Xxxx | ||||
| Witness: | ||||
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EXHIBIT B
NON-DISCLOSURE AGREEMENT
WHEREAS, the Xxxxxx-Xxxxxxx-Midland Company, hereafter called “Company” is engaged in the
development and manufacture of products which involve expert mental and inventive work, and the
success of its business depends to a considerable extent upon the development of new and improved
products, processes, equipment, and methods of doing business and upon me secrecy and patent
protection of such new or improved products, processes, equipment, and methods of doing business;
WHEREAS, the undersigned, hereafter called by “Employee” has entered the employ of the
Company, and the Employee and the Company have reached on agreement regarding the rate of salary to
be paid the Employee until such employment shall be terminated, or until such rate of salary is
changed by mutual agreement;
IT IS AGREED, that as a condition of such employment and the continuation thereof, that all
inventions, discoveries, or improvements which the Employee has conceived or first actually reduced
to practice and/or may conceived or first actually reduce to practice during the period of
Employee’s employment in any way relating to or employed or valuable in conjunction with business
of the character now or hereafter carried on or contemplated by the Company during the period of
Employee’s employment shall be the sale and exclusive property of the Company or its nominee, and
the Employee agrees promptly to disclose any such discovery, invention, or improvements to an
officer or other proper official of the Company and the Employee agrees to execute and assign any
and all applications, assignments and other instruments which the Company shall determine necessary
or convenient in order to apply for and obtain Letters Patent of the United States, and/or foreign
countries for such discoveries, inventions, or improvements and in order to assign and convey to
the Company or its nominee the sole and exclusive right title and interest in and to said
discoveries, inventions, or improvements, will render aid and assistance in any interference or
litigation pertaining thereto, all expenses reasonably incurred by Employee at the request of the
Company to be borne by the Company; provided, however, that the provisions of this paragraph shall
not apply to an invention, discovery, or improvement for which no equipment, supplies, facility, or
trade secret information of the Company was used and which was developed entirely on Employee’s own
time, Unless (a) the invention, discovery, or improvement relates (i) to the business of the
Company, or (ii) to the Company’s actual or demonstrably anticipated research or development, or
(b) the invention, discovery, or improvement results from any performed by Employee for the
Company;
The Employee further agrees, except as required by Employee’s duties while employed by the
Company, not to use or disclose to any person, firm or corporation, at any time, either during
his/her employment with the Company or thereafter, any such invention, discovery or improvement, or
any trade secret or confidential information of the Company, whatsoever, including,, without
limitation, information regarding any of
the Company’s customers, markets, future plans, the prices at which it obtains or has obtained its
raw materials and other supplies, the prices at which it sells or has sold its products, processes,
procedures, machines, equipment, reagents, materials, formulae, computer systems, programs,
designs, forms, documentation or any automated or manual information system methods or procedures
conditions and methods of operation or apparatus used or employed by the Company or in any way
useful in or connected with its business or activities.
It is understood that the provisions set forth in this agreement shall remain in full force
and effect during the entire period that Employee is employed by the Company unless modified in
writing signed by Employee and a proper officer of the Company; and changes made from time to time
in the salary paid Employee and accepted by Employee shall be construed only as a modification of
this agreement without altering in any way the force and effect of the above provisions.
STANDARDS OF ETHICAL CONDUCT
Adherence to high standards of ethical conduct is expected from ADM employees. The following
restrictions apply to the outside business activities and investments of all employees:
| A. | No employee shall take outside employment with a competitor, supplier, or customer of ADM without prior clearance from the President. | ||
| B. | No employee shall purchase, trade or otherwise deal in commodities, including options, which are sold, purchased, traded or processed by ADM, its subsidiaries or affiliates. | ||
| C. | No director or employee shall have a financial interest in a company or enterprise which is competing with Xxxxxx-Xxxxxxx-Midland Company or with which Xxxxxx-Xxxxxxx-Midland Company does business exceeding $5,000 per annum, unless such ownership is less than 10% of the equity in such company or enterprise. Ownership of any interest in a customer, supplier or competitor by an employee’s spouse or minor children shall be attributed to the employee in determining such equity percentages. A list of all such interests totaling more than 2% shall be filed with the Secretary of this Company and supplements filed within 30 days after any changes. Deviations from this policy shall only be authorized by the Board of Directors on consideration of specific circumstances. |
| (signed) | /s/ Xxxxxxx X. Xxxx | ||||||
| Employee | |||||||
| Date | 9-26-91 | ||||||
