EXHIBIT 10.1
EXECUTIVE SEPARATION AGREEMENT AND RELEASE
THIS EXECUTIVE SEPARATION AGREEMENT AND RELEASE (the "AGREEMENT") is
made and entered into effective as of July 22, 2003 (the "EFFECTIVE DATE") by
and between INSITUFORM TECHNOLOGIES, INC., a Delaware corporation ("EMPLOYER"),
and Xxxxxxx X. Xxxxxx ("EXECUTIVE").
PRELIMINARY STATEMENT
A. Executive's employment with Employer terminated as of the Effective
Date.
B. Without any admission as to fault, liability or wrongdoing, and in
order to provide for a smooth transition in leadership of Employer and to avoid
the time, distractions and resource expenditures potentially associated with an
involuntary departure, Employer and Executive desire to resolve all matters
relating to or arising out of Executive's employment by Employer and Executive's
termination of employment with Employer on the terms described below.
C. Executive is being provided a period of twenty-one (21) days from
the date that he receives this Agreement (the "ACCEPTANCE DATE") (which will be
August 11, 2003 because Executive is being provided this Agreement on July 21,
2003), to consider the meaning and effect of this Agreement prior to finally
accepting this Agreement. Executive has been (and hereby is) advised in writing
to consult with an attorney prior to finally accepting this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. RESIGNATION AS EXECUTIVE OFFICER AND DIRECTOR; EMPLOYMENT
TERMINATION. Executive voluntarily resigns all of his executive officer
positions and offices with Employer and any of its subsidiaries and plans as of
the Effective Date. Executive also resigns, as of the Effective Date, his
position as a director of Employer and as a director (or similar position) of
any of its subsidiaries or affiliates. These resignations are effected by means
of a separate resignation letter in the form attached to this Agreement as
Exhibit A, signed and delivered by Executive and accepted by the Board of
Directors. The employment of Executive by Employer, in any capacity whatsoever,
ceases as of the Effective Date, except under terms and conditions as
specifically approved by the Board of Directors and set forth in a separate
letter between Executive and Employer. Executive's status as an executive
officer and director of Employer, and the accompanying obligations imposed upon
executive officers and directors of public companies by applicable law,
regulation, contract and internal company policy also cease as of the Effective
Date. Any and all right or authority of Executive to act as an agent of
Employer, in any manner whatsoever, terminates on the Effective Date. Employer
will pay Executive as soon as practicable after the Effective Date for all
accrued but unpaid compensation due Executive as well as any accrued but unused
vacation time, which is agreed to be 4 weeks, as of the Effective Date.
2. REVOCATION OF ACCEPTANCE. Executive has the right to consult with an
attorney or attorneys of his choice concerning this Agreement and has been
advised in writing of his right to do so. Executive has until the Acceptance
Date to accept this Agreement unless Employer elects to rescind the Agreement
before such acceptance. Executive may accept this Agreement by delivering this
Agreement, executed by Executive as required, to the Corporate Secretary of
Employer (or the Corporate Secretary's designee) within such twenty-one day (21)
period after delivery of this Agreement to Executive. Executive also has a
period of seven (7) days from the date Executive delivers a signed copy of this
Agreement to Employer to revoke his acceptance of this Agreement. For Executive
to revoke his acceptance of this Agreement, he must notify the Board of
Directors, through written notice delivered to the Corporate Secretary prior to
the close of business on the seventh day after delivery of the signed Agreement,
of his
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decision to revoke his acceptance. If Executive does not accept this Agreement
prior to the Acceptance Date or revokes his acceptance prior to the close of
business on the seventh day after delivering a signed copy of the Agreement to
Employer, the payments described in this Agreement and the benefits agreed upon
will not be paid or provided and this Agreement shall be null, void and of no
force or effect with respect to either Executive or Employer. In the event of a
failure by Executive to timely accept this Agreement or upon a timely revocation
of acceptance of this Agreement, the resignation of Executive from his positions
as an executive officer and director of Employer and its subsidiaries and
affiliates as contemplated in Section 1 will not be revoked and will remain in
full force and effect, but Executive will be entitled to receive solely those
payments and benefits due to him under that certain employment letter dated July
15, 1998 by and between Executive and Employer (the "Employment Letter") for a
termination of employment without cause. If Executive delivers a signed copy of
this Agreement to Employer and does not timely revoke his acceptance of this
Agreement, the terms and conditions of this Agreement will control with respect
to the matters contained herein.
3. SEPARATION PAYMENTS AND BENEFITS. In consideration for the
resignation of Executive from all executive officer positions and directorships
with Employer and its subsidiaries and the other representations, warranties,
covenants and agreements made by Executive and contained in this Agreement,
Employer shall pay the following amounts and provide the following benefits (the
"SEPARATION PAYMENTS AND BENEFITS") under the terms and conditions stated in
this Agreement:
(a) REGULAR CASH SEVERANCE PAYMENTS. Employer agrees to pay
Executive an aggregate sum of One Million Fifty-Eight Thousand Seven Hundred
Thirteen Dollars and No/100 Cents ($1,058,713.00) in cash in thirty-six (36)
consecutive installments (the "REGULAR CASH SEVERANCE PAYMENTS") of Twenty-Nine
Thousand Three Hundred Eighty-Nine Dollars and 25/100 Cents ($29,389.25). The
Regular Cash Severance Payments will be payable on the regularly scheduled pay
date under Employer's normal payroll practices starting with the first regular
payday after all conditions to effectiveness of this Agreement are satisfied and
the seven-day revocation period expires without Executive revoking his
acceptance of this Agreement.
(b) CONTINUATION OF HEALTH, DENTAL, LIFE AND DISABILITY
BENEFITS AND AUTOMOBILE ALLOWANCE. Employer agrees to continue to provide
Executive with health, dental, life and disability benefits equivalent to
Executive's current benefits for Executive and his eligible family members (the
"WELFARE BENEFITS") and a car allowance in the amount of Nine Hundred
Eighty-Five Dollars and No/100 Cents ($985.00) (the "CAR ALLOWANCE"), for either
a period of eighteen (18) months after the Effective Date or upon Executive's
full-time employment with another employer and qualification as an employee for
coverage under another group health insurance plan, whichever occurs first.
During such continuation period, Employer shall be responsible to pay the same
portion of the Welfare Benefits as Employer had been responsible to pay prior to
the Effective Date. If Executive chooses to continue his health and medical
benefits under COBRA after Employer is no longer required to pay for such
benefits in accordance with this subsection, Executive will be responsible for
the payment of such benefits for the remainder of the period required under
COBRA. Unless otherwise modified in a separate letter on continued employment of
Executive by Employer, Executive agrees that the qualifying event for electing
to continue Executive's health and medical benefits under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA") is the date on
which Executive no longer holds any position with Employer or any of its
subsidiaries. Executive shall not be entitled to continue his participation in
any other benefits generally available to employees of Employer, including any
401(k) plan, cash incentive or bonus plans, stock-based incentive plans or the
like. The Effective Date shall be the trigger date for any 401(k) plan or
deferred compensation rollovers or distributions.
(c) EXERCISABILITY OF STOCK OPTIONS; UNVESTED STOCK AWARDS
FORFEITED. Any vested options that Executive holds unexercised on the Effective
Date will remain exercisable until July 22, 2004, but any options or other stock
awards that are unvested on the Effective Date will be cancelled and forfeited
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by Executive to Employer. Executive acknowledges and agrees that he will remain
subject to Employer's xxxxxxx xxxxxxx policy, which includes compliance with all
blackout periods.
(d) REPAYMENT TERMS ON PERSONAL LOAN. That certain loan (the
"PERSONAL LOAN") from Employer to Executive in the original principal amount of
Two Hundred Thousand Dollars and No/00 Cents ($200,000.00) shall be due and
payable by Executive to Employer in eleven (11) monthly installments of One
Thousand Seventy-Three Dollars and 64/00 Cents ($1,073.64) (with such amount
determined on the basis of a thirty-year amortization of the full principal
amount assuming regular monthly payments and 5% per annum interest rate (prime
rate plus 1%) and a final balloon payment of One Hundred Ninety-Eight Thousand
One Hundred Twenty-Two Dollars and 96/00 Cents ($198,122.96), the balance of the
principal plus accrued but unpaid interest on the first anniversary of the
Effective Date. The first eleven (11) monthly payments due from Executive under
the Personal Loan will be directly offset from the Special Cash Severance
Payments (as such term is defined in Section 3(e)). All required payments under
the Personal Loan, unless otherwise paid by Executive on a timely basis, can be
directly offset from any of the Cash Severance Payments (as that term is defined
in Section 3(e)). Executive irrevocably authorizes Employer to make all such
offsets from these payments due from Employer to Executive.
(e) SPECIAL CASH SEVERANCE PAYMENTS. In consideration for
Executives continued performance of all of his covenants, agreements and
obligations under this Agreement, Employer shall pay Executive an additional
cash payment (the "SPECIAL CASH SEVERANCE PAYMENT" and, collectively with the
Regular Cash Severance Payment, the "CASH SEVERANCE PAYMENTS") equal to Seventy
Five Thousand Dollars and No/00 Cents ($75,000.00), payable in cash in 12
consecutive monthly installments of Six Thousand Two Hundred Fifty Dollars and
No/00 Cents ($6,250.00). The first eleven (11) of the Special Cash Severance
Payments will be directly offset by the monthly payments of One Thousand
Seventy-Three Dollars and 64/00 Cents ($1,073.64), for a net monthly payment to
Executive of Five Thousand One Hundred Seventy-Six Dollars and 36/00 Cents
($5,176.36).
(f) GENERAL. All Separation Payments and Benefits shall be
paid or provided subject to any applicable federal, state and local income tax
or other appropriate withholding requirements as well as the right of Employer
to directly offset any amounts owed by Executive to Employer, including the
Personal Loan as set forth in Section 3(d). Further, the Separation Payments and
Benefits represent all of the compensation (including vacation and severance
pay) to which Executive is, or may be, entitled by virtue of Executive's
employment and separation from employment with Employer. This Section 3,
however, shall have no force or effect if Executive revokes Executive's
acceptance of this Agreement pursuant to Section 3 hereof.
4. EXECUTIVE AGREEMENTS, REPRESENTATIONS AND RELEASES.
(a) PRIOR AGREEMENTS REGARDING SEVERANCE OR SEPARATION
BENEFITS SUPERSEDED. In consideration for all of the Severance Payments and
Benefits to be paid or received by Executive under this Agreement and subject to
Section 2, Executive agrees that any other agreement with respect to severance
or separation payments between Executive and Employer, including the Employment
Letter, is terminated as of the Effective Date of this Agreement and is
superseded in its entirety by the terms of this Agreement in all respects.
Executive will have no further rights, and Employer will have no further
obligations, under the Employment Letter or any other such agreement
(b) REPRESENTATIONS. Executive represents and warrants to
Employer that (i) Executive (A) has not filed any suit, action, claim,
allegation or other proceeding at law or in equity, before any court,
governmental agency, arbitration panel or other forum of any nature (an
"ACTION") with respect to the matters released below or (B) will not prosecute,
and will immediately dismiss with prejudice, any pending Action with respect to
the matters released below; (ii) Executive has not assigned to any other person
or entity any right(s) or claim(s) Executive may have against Employer; (iii) in
deciding to execute this
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Agreement (A) no fact, evidence, event or transaction currently unknown to
Executive, but which may hereinafter become known to Executive, shall affect in
any way or any manner the final or unconditional nature of this Agreement; (B)
Executive's execution of this Agreement is a knowing and voluntary act on
Executive's part and was not provided in connection with any exit incentive or
other employment termination program offered to any group or class of employees;
(C) Executive has read and fully understands the terms of this Agreement,
including the final and binding nature and effect of Executive's waiver of
rights by execution of this Agreement and was advised in writing to consult with
an attorney before signing the Agreement at the time Executive first received
this Agreement; (D) Executive has been provided with a reasonable and adequate
period of time (and at least twenty-one (21) days) to consider this Agreement
and consult with his attorneys and advisors concerning this Agreement and has
consulted with legal counsel as to the meaning of this Agreement and relied
solely upon the judgment of Executive's legal counsel in determining to finally
accept this Agreement; and (E) Executive has not been promised anything or
provided any consideration for entering into this Agreement that is not
specified in this Agreement. In addition, Executive hereby represents and
warrants that, to the best of his knowledge, Executive has disclosed to
Employer, either on or prior to the Effective Date, any material violation of
federal, state, foreign or local criminal law or regulation that is applicable
to Employer, any threatened or pending federal, state, foreign or local
governmental criminal investigation against Employer and any practice or policy
of Employer that may be unlawful under applicable federal, state, foreign or
local criminal law.
(c) WAIVER AND RELEASE. Executive hereby releases, gives up
and waives any and all rights or claims for liability Executive may now or in
the future have against Employer, and its shareholders, directors, officers,
employees, agents, affiliates, subsidiaries and predecessors in interest,
together with their respective shareholders, directors, officers, employees,
insurers and agents (collectively, "RELEASED PARTIES") in connection with,
relating to or arising out of Executive's employment with Employer (or any
Released Parties) or out of the termination of Executive's employment with
Employer (or any Released Parties) or any promise, agreement, act, conduct or
decision of any of the Released Parties. Further, EXECUTIVE HEREBY VOLUNTARILY,
KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY, RELEASES, REMISES, ACQUITS AND
FOREVER DISCHARGES RELEASED PARTIES of and from any and all manner of claims,
actions, charges, complaints, causes of action, suits, judgments, demands,
injuries, damages and agreements whatsoever, whether in law or in equity,
whether based on contract, statute, tort or strict liability, any alleged rights
or claims arising under the National Labor Relations Act; Title VII of the Civil
Rights Act of 1964, as amended; Sections 1981 through 1988 of Title 42 of the
United States Code, as amended; the Employee Retirement Income Security Act of
1974, as amended (except for claims under Employer's 401(k) Profit Sharing
Plan); the Immigration Reform Control Act; the Americans with Disabilities Act
of 1990, as amended; the Age Discrimination in Employment Act of 1967, as
amended; the Rehabilitation Act of 1973, as amended; the Fair Labor Standards
Act of 1938; the Occupational Safety and Health Act; the Family and Medical
Leave Act; the Missouri Human Rights Act; Missouri's Workers' Compensation Law;
the Missouri Service Letter Statute; other alleged age discrimination or other
employment discrimination, breach of express or implied contract, breach of the
covenant of good faith and fair dealing, wrongful discharge, or any other
alleged violation of federal, state, or local statutory or common law, whether
or not now known or contemplated, which now exist or may hereafter arise from
any matter, fact, circumstance, happening or thing whatsoever occurring or
failing to occur in connection with, relating to or arising out of Executive's
employment with Employer (or any Released Parties) or out of the termination of
Executive's employment with Employer (or any Released Parties). This is not,
however, a release of any claims arising after this date or any right to vested
benefits due Executive under Employer's 401(k) plan or group health or dental
insurance plans based plans based upon service to and ending as of the Effective
Date.
Except with respect to obligations under this Agreement, under the
Personal Loan or matters which the Employer would not be able to indemnify
Executive, Employer hereby releases, gives up and waives any and all rights or
claims for liability Employer may now or in the future have against Executive in
connection with, relating to or arising out of Executive's employment with
Employer. Further, except as excluded above, EMPLOYER HEREBY VOLUNTARILY,
KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY, RELEASES, REMISES, ACQUITS
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AND FOREVER DISCHARGES EXECUTIVE of and from any and all manner of claims,
actions, charges, complaints, causes of action, suits, judgments, demands,
injuries, damages and agreements whatsoever, whether in law or in equity,
whether based on contract, statute, tort or strict liability, whether or not now
known or contemplated, which now exist or may hereafter arise from any matter,
fact, circumstance, happening or thing whatsoever occurring or failing to occur
in connection with, relating to or arising out of Executive's employment with
Employer.
(d) NATURE OF RELEASE. It is expressly understood and agreed
that this Agreement is intended to cover and does cover not only all known
losses and damages but any future losses and damages not now known or
anticipated but which may later develop or be discovered, including the effects
and consequences thereof. It is further expressly understood and agreed that as
against Executive this Agreement may be pleaded as a counterclaim to or as a
defense in bar or abatement of any action taken by or on behalf of Executive.
Executive agrees that neither this Agreement nor performance hereunder
constitutes or should be construed as an admission by Employer or any of the
Released Parties of any violation of any Employer policy, federal, state,
foreign or local law, regulation, common law, or any breach of any contract or
any other wrongdoing of any type, all of which are expressly denied.
5. COVENANT NOT TO XXX; INDEMNIFICATION. Executive agrees not to enter
into any suit, action or other proceeding at law or in equity (including
administrative actions), or to prosecute further any existing suit or action
that might presently exist, or to make any claim or demand of any kind or nature
against any Released Party, in any such case asserting any claim released by
Executive by Section 4 of this Agreement, other than an action against Employer
to enforce Executive's rights set forth in this Agreement. If Executive enters
into any such suit, action or other proceeding in violation of this Section 5,
Executive shall (i) indemnify, defend and hold the Released Parties harmless
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, action, suits, costs, expenses and disbursements (including
attorneys' fees and expenses and court costs whether or not litigation is
commenced and, if litigation is commenced, during all trial and appellate phases
of such litigation) of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against any Released Party in any way relating to,
arising out of, connected with or resulting from such actions, including any of
the matters released hereunder and (ii) immediately return the Separation
Payments and Benefits (or the value thereof). Employer shall indemnify Executive
to the full extent permitted by any applicable insurance or by Section 145 of
the Delaware General Corporation Law, as amended from time to time, in
connection with any action, suit or proceeding arising by reason of any acts
taken or omissions to act occurring while Executive was an officer and director
of Employer or any of its subsidiaries.
6. CONFIDENTIALITY; NONSOLICITATION AND NONCOMPETITION.
(a) CONFIDENTIALITY. Executive acknowledges the competitive
nature of the Employer's business and agrees and reaffirms that any information
acquired by Executive regarding the Employer's business, its finances, costs,
pricing, contracts, customers, prospects, plans, products, manufacturing
methods, technology, personnel, directors and officers (whether or not such
information is marked confidential) shall be considered the Employer's
confidential information. In furtherance and not limitation of any prior
agreements regarding confidentiality, Executive agrees not to disclose to anyone
(other than Employer), or use for Executive's benefit or the benefit of any
other person (other than Employer), any marketing documents or information,
financial statements, reports, salary information, product cost or price
information, technical information, financial information, manufacturing
methods, technology, any information relating to customers, production,
prospects, bids, proposals or sales or any other information acquired by
Executive regarding Employer or its business, directors, officers, and employees
(whether or not such information is marked confidential). Furthermore, Executive
agrees to immediately return to Employer all Employer property and any
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information (including any copies thereof) which Executive has received,
prepared or helped to prepare during the course of Executive's employment with
Employer.
(b) NONSOLICITATION. In consideration of the Separation
Payments and Benefits, and in furtherance and not limitation of any prior
agreement between Executive and Employer with respect to nonsolicitation
matters, Executive acknowledges and agrees that, from the Effective Date through
July 22, 2004, Executive will not, directly or indirectly recruit any employee,
sales representative, consultant or other personnel of Employer or any of its
subsidiaries or affiliates (other than secretarial, custodial and clerical
employees) to work for another company or business; nor will Executive assist
anyone else in recruiting or hiring any such employee to work for another
company or business or discuss with any such person his or her leaving the
employ of the Employer to engage in a business activity in competition with
Employer or any of its subsidiaries or affiliates. Executive acknowledges and
agrees that, from the Effective Date through July 22, 2004, Executive will not
directly or indirectly (i) solicit or encourage any person firm, corporation or
other business entity to cease doing business, or reduce the level of business
that could be done, with Employer or any of its subsidiaries or affiliates, or
discuss doing so with any such person, firm, corporation or entity; or (ii) take
away or procure for the benefit of any competitor of Employer or any of its
subsidiaries or affiliates, any business of the type provided by or competitive
with a product or service offered by Employer or any of its subsidiaries or
affiliates.
(c) NONCOMPETE PERIOD. In consideration of the Separation
Payments and Benefits, and in furtherance and not limitation of any prior
agreement between Executive and Employer with respect to noncompete matters,
Executive agrees that from the Effective Date through July 22, 2004, Executive
will not act as a consultant, advisor, independent contractor, officer, manager,
employee, principal, agent, director or trustee, or provide any services or
advice to, of any corporation, partnership, limited liability company,
association or other entity, or directly or indirectly own more than one percent
(1%) of the outstanding equity of any such entity which is engaged in the
business of rehabilitating, lining, relining, coating, constructing or
reconstructing pipelines, sewers, conduits or passageways anywhere in the world;
or otherwise engage in such business. Executive specifically agrees and
acknowledges that Employer does business and will continue to seek and do
business in the United States and internationally so the foregoing geographic
scope is reasonable in light of current and presently anticipated operations of
the Employer.
(d) EQUITABLE RELIEF. Executive acknowledges and agrees that
(i) any breach of this Agreement by Executive, including any breach of the terms
of this Section 6, will cause Employer irreparable injury and damage, (ii) the
provisions of this Agreement are necessarily of a special, unique and
extraordinary nature and (iii) if Executive breaches any such provisions,
Employer shall be entitled, in addition to any other remedies and damages
Employer could recover as a result of any such breach, to obtain equitable
relief, including restraining orders or injunctions, both temporary and
permanent, in order to prevent future violation thereof by Executive or any
person with whom Executive may be affiliated. Executive hereby waives the claim
or defense that Employer has an adequate remedy at law and Executive shall not
claim that an adequate remedy at law exists. Further, Executive waives any
requirement for Employer to post a bond in connection with any action relating
to this Agreement.
(e) SURVIVAL. The provisions of this Section 6 shall survive
any termination of this Agreement.
7. NONDISCLOSURE; NO DISPARAGING REMARKS; NO RE-APPLICATION. Executive
agrees that the terms of this Agreement will not be discussed by Executive with,
or otherwise disclosed by Executive to, any person other than Executive's
attorney, including any present or former employee of Employer, its
shareholders, affiliates, subsidiaries or predecessors in interest. Executive
agrees that Executive will not disparage Employer. Executive agrees that a
breach by Executive of the first or second sentence of this Section will cause
harm and damage to Employer that is impossible, or very difficult, to estimate
accurately as of the date of this Agreement. Accordingly, Executive agrees to
pay to Employer, as liquidated damages
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(and not as a penalty), an amount equal to the Special Cash Severance Payments
for any (and each) such breach. Executive further agrees, and hereby waives any
right to challenge, that such liquidated damages amount (i) is a reasonable
forecast of the probable damages resulting from such a breach, (ii) will provide
just compensation for such a breach, and (iii) is not unreasonable or
disproportionate to the amount of harm anticipated as the result of such breach.
Executive agrees not to re-apply for any employment position with Employer
without expressly and conspicuously listing this Agreement on any application
for such re-employment. Further, Executive agrees that Employer shall not be
required to give any consideration to such re-application.
Employer agrees that Employer will not disparage Executive. For
purposes of the foregoing, only statements made by Employer's directors,
executive officers and human resource directors will be attributed to Employer.
Employer agrees that a breach by Employer of the first or second sentence of
this Section will cause harm and damage to Executive that is impossible, or very
difficult, to estimate accurately as of the date of this Agreement. Accordingly,
Employer agrees to pay to Executive, as liquidated damages (and not as a
penalty), an amount equal to the Special Cash Severance Payments for any (and
each) such breach. Employer further agrees, and hereby waives any right to
challenge, that such liquidated damages amount (i) is a reasonable forecast of
the probable damages resulting from such a breach, (ii) will provide just
compensation for such a breach, and (iii) is not unreasonable or
disproportionate to the amount of harm anticipated as the result of such breach.
8. GENERAL PROVISIONS.
(a) ENTIRE AGREEMENT. This Agreement incorporates by this
reference the Preliminary Statement hereto. Each party represents and warrants
that any facts relating to such party that are contained in the Preliminary
Statement are true. This Agreement and any agreement, instrument or document to
be executed in connection herewith (as referenced herein) contain the parties'
entire understanding and agreement with respect to the subject matter hereof
(the termination of Executive's employment and directorship with Employer, the
Severance Payments and Benefits and the release of any potential related
claims). Any discussions, agreements, promises, representations, warranties or
statements between the parties or their representatives (whether or not
conflicting or inconsistent) that are not expressly contained or incorporated
herein shall be null and void and are merged into this Agreement, except that
any confidentiality agreement, noncompete agreement, invention assignment, stock
option agreement or other agreement between Employer and Executive, expressly
covering a party's rights after termination of employment, shall remain in full
force and effect, in accordance with its terms, after the execution of this
Agreement, except to the extent specified in this Agreement. In case of any
conflict between Executive's rights under any such agreement and this Agreement,
the terms of this Agreement will control.
(b) MODIFICATION, AMENDMENT AND WAIVER. Neither this
Agreement, nor any part hereof, may be modified or amended orally, by trade
usage or by course of conduct or dealing, but only by and pursuant to an
instrument in writing duly executed and delivered by the party sought to be
charged therewith. No covenant or condition of this Agreement can be waived,
except by the written consent of the party entitled to receive the benefit
thereof. Forbearance or indulgence by a party in any regard whatsoever shall not
constitute a waiver of a covenant or condition to be performed by the other
party to which the same may apply, and, until complete performance by such other
party of such covenant or condition, the party entitled to receive the benefit
thereof shall be entitled to invoke any remedy available to it under this
Agreement, at law, in equity, by statute or otherwise, despite such forbearance
or indulgence.
(c) SUCCESSORS, ASSIGNS AND THIRD PARTY BENEFICIARIES. This
Agreement shall be binding upon, and inure to the benefit of, the parties hereto
and their respective successors and permitted assigns. Except as expressly
provided herein, neither this Agreement nor any rights hereunder may be assigned
or transferred, and no duties may be delegated, by any party hereto without the
prior written consent
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of the other party hereto. Each affiliate of Employer (and their predecessors,
successors and assigns) shall be a third party beneficiary of this Agreement, as
if such affiliate was the "Employer" hereunder.
(d) CONSTRUCTION. This Agreement shall not be construed more
strictly against one party than against another party merely by virtue of the
fact that this Agreement may have been physically prepared by such party, or
such party's counsel, it being agreed that all parties, and their respective
counsel, have mutually participated in the negotiation and preparation of this
Agreement. Unless the context of this Agreement clearly requires otherwise: (i)
references to the plural include the singular and vice versa; (ii) references to
any person include such person's successors and assigns but, if applicable, only
if such successors and assigns are permitted by this Agreement; (iii) references
to one gender include all genders; (iv) "including" is not limiting; (v) "or"
has the inclusive meaning represented by the phrase "and/or"; (vi) the words
"hereof", "herein", "hereby", "hereunder" and similar terms in this Agreement
refer to this Agreement as a whole and not to any particular provision of this
Agreement; (vii) article, section, subsection, clause, exhibit and schedule
references are to this Agreement unless otherwise specified; (viii) reference to
any agreement (including this Agreement), document or instrument means such
agreement, document or instrument as amended or modified and in effect from time
to time in accordance with the terms thereof and, if applicable, the terms
hereof; and (ix) general or specific references to any law means such law as
amended, modified, codified or re-enacted, in whole or in part, and in effect
from time to time.
(e) GOVERNING LAW. All questions with respect to the formation
and construction of this Agreement, and the rights and obligations of the
parties hereto, shall be governed by and determined in accordance with the laws
of the State of Missouri, which are applicable to agreements entered into and
performed entirely within such State, without giving effect to the choice or
conflicts of law provisions thereof.
(f) ATTORNEYS' FEES. In any suit or proceeding arising in
connection with this Agreement, the prevailing party shall have the right to
receive an award of the reasonable attorneys' fees and disbursements actually
incurred by it in connection therewith. Each reference to attorneys' fees or
attorneys' fees and disbursements in this Agreement shall include attorneys' and
paralegal fees, and costs and disbursements, whether or not suit is brought
(and, if suit is brought, during all trial and appellate phases of litigation).
(g) SEVERABILITY. If any Section (or part thereof) of this
Agreement is found by a court of competent jurisdiction to be contrary to,
prohibited by or invalid under any applicable law, such court may modify such
Section (or part thereof) so, as modified, such Section (or part thereof) will
be enforceable and will to the maximum extent possible comply with the apparent
intent of the parties in drafting such Section (or part thereof). If no such
modification is possible, such Section (or part thereof) shall be deemed
omitted, without invalidating the remaining provisions hereof. No such
modification or omission of a Section (or part thereof) shall in any way affect
or impair such Section (or part thereof) in any other jurisdiction. If, in the
sole judgement of Employer, a Section (or part thereof) of this Agreement is so
modified or omitted in a manner which eliminates a substantial part of the
benefit intended to be received by Employer hereunder, then Employer may rescind
this Agreement and Executive shall immediately return to Employer any
consideration paid hereunder.
(h) CAPTIONS. The captions, headings and titles of the various
Sections of this Agreement are for convenience of reference only, and shall not
be deemed or construed to limit or expand the substantive provisions of such
Sections.
(i) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of which
together shall constitute a single agreement. A facsimile signature is as good
as an original
[signature page next]
7 Executive Initials: /s/ _______
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
EXECUTIVE: EMPLOYER:
INSITUFORM TECHNOLOGIES, INC.,
/s/ Xxxxxxx X. Xxxxxx
------------------------------------ By: /s/ Xxxxxxx X. Xxxxxxxxxx
Print Name: Xxxxxxx X. Xxxxxx -------------------------------
SSN: Name: Xxxxxxx X. Xxxxxxxxxx
Address: Title: Chairman of the Compensation
Committee of Board of Directors
8 Executive Initials: _________
EXHIBIT A
FORM OF RESIGNATION LETTER
July 22, 2003
Board of Directors
Insituform Technologies, Inc.
702 Spirit 00 Xxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Gentlemen:
Effective immediately, I hereby resign as Chairman of the Board, Chief Executive
Officer and director of Insituform Technologies, Inc. (the "Company"). I also
resign, effective immediately, from all other offices and directorships (or
similar positions) of the Company's subsidiaries and affiliates. In addition, I
am terminating my employment with the Company and its subsidiaries and
affiliates effective immediately. except to the extent that the Board of
Directors and I agree to a continuing employment relationship with the Company
in a separate letter.
I understand and specifically agree that if I choose to revoke my acceptance of
that certain Executive Separation Agreement and Release (the "Separation
Agreement") pursuant to the terms of Section 2 of that agreement, my resignation
from my offices and directorships and the termination of my employment with the
Company, its subsidiaries and affiliates will not be revoked and will remain in
full force and effect. In the event of such a revocation of the Separation
Agreement pursuant to the Section 2 thereof, the Company agrees to treat my
termination of employment as a termination of employment by Employer without
cause for all purposes, including determining the severance benefits payable to
me under my employment letter dated July 15, 1998.
Very truly yours,
Xxxxxxx X. Xxxxxx
APPROVED AND ACCEPTED:
----------------------------------
Xxxxxxx X. Xxxxxxxxxx
Chairman, Compensation Committee
9 Executive Initials: _________
