EXHIBIT 10.8
EMPLOYMENT AND SEPARATION AGREEMENT
This Employment and Separation Agreement (hereinafter "Agreement") is
made and entered into by and between Xxxxxx X. Xxxxxxxx (hereinafter "Xxxxxxxx")
and Minnesota Corn Processors, Inc., (hereinafter "the Company").
WHEREAS, Xxxxxxxx has been employed by the Company as its Chief
Operating Officer and as the President and Chief Executive Officer of Liquid
Sugars, Inc. (hereinafter "LSI"); and
WHEREAS, the Company has recently begun an integration of LSI into the
Company; and
WHEREAS, Xxxxxxxx and the Company wish to set forth the terms of
Xxxxxxxx'x role in the integration of LSI into the Company and affect the
termination of Xxxxxxxx'x employment with the Company and LSI following his
completion of this role on the terms and conditions set forth herein; and
WHEREAS, it is the intention of the Company and Xxxxxxxx that this
Agreement shall constitute the entire agreement between the Company and
Xxxxxxxx, and shall in all respects supersede, terminate, replace, and supplant
the terms and conditions of any and all previous employment agreements and any
and all amendments thereto, whether written or oral, and understandings and
discussions relating to similar subjects, between Xxxxxxxx and the Company, LSI,
or any related company or entity;
NOW, THEREFORE, in consideration of the provisions and of the mutual
convenants contained herein, the parties agree as follows:
1. Until such time as Xxxxxxxx'x role in connection with the
integration of LSI into the Company has been completed (as determined in the
sole discretion of L. Xxx Xxxxxxxx, the Company's President and Chief Executive
Officer), or at a time determined in the sole discretion of L. Xxx Xxxxxxxx, the
Company's President and Chief Executive Officer, or until October 31, 1999,
whichever occurs later, the Company hereby agrees to employ Xxxxxxxx. During
this period of time, Xxxxxxxx hereby agrees to perform such job duties and
functions as may be reasonably determined and assigned to him from time-to-time
by L. Xxx Xxxxxxxx, the Company's President and Chief Executive Officer. During
this period of time, Xxxxxxxx agrees that he will devote his full time,
attention, knowledge, and skill exclusively to the loyal service of the Company
and will use his best efforts to carry out all of the duties and
responsibilities that are or may be assigned to him; however, Xxxxxxxx will be
provided with reasonable time to conduct a job search. During this period of
time, the Company will provide Xxxxxxxx with the compensation and benefits
described below:
(a) Salary. An annual salary of $187,500.00, less legally
required deductions and withholdings, payable to Xxxxxxxx at regular
periodic payroll intervals in accordance with the Company's normal
payroll practices.
(b) Vacation. Xxxxxxxx shall be entitled to two (2) weeks
vacation per year and an additional two (2) weeks paid leave per year.
(c) Incentive Compensation. Xxxxxxxx shall be eligible to
participate in the Company's annual discretionary bonus program.
(d) 401(k) Plan. Xxxxxxxx will be eligible to participate in
the Company's 401(k) plan as per 401(k) plan policy.
(e) Annuity. The Company shall reimburse Xxxxxxxx
approximately $13,000 in payment of the 1999 premium for an existing
universal benefit policy. If Xxxxxxxx is still employed by the Company
in October 2000 or October of any succeeding year, the Company shall
reimburse Xxxxxxxx approximately $13,000 each year in payment of the
premium for the existing universal benefit policy.
(f) Insurance Benefits. Xxxxxxxx shall be eligible to
participate in all employee benefit plans or programs of the Company to
the extent that his position, title, tenure, salary, age, health, and
other qualifications make him eligible to participate. The Company does
not guarantee the adoption or continuance of any particular employee
benefit plan or program during the period of time covered by this
Agreement, and Xxxxxxxx'x participation in any such plan or program
shall be subject to the provisions, rules, and regulations applicable
thereto.
(g) Employment-Related Expenses. The Company shall pay or
reimburse Xxxxxxxx for all reasonable and necessary out-of-pocket
expenses incurred by him in the performance of his duties pursuant to
this Agreement, subject to the presentment of appropriate vouchers in
accordance with the Company's normal policies for expense verification.
2. Xxxxxxxx will resign all officer, director, and other positions with
the Company and LSI, including, but not limited to, Chief Operating Officer of
the Company and President and Chief Executive Officer of LSI, as of the close of
business on the date Xxxxxxxx'x role in connection with the integration of LSI
into the Company has been completed (as determined in the sole discretion of L.
Xxx Xxxxxxxx, the Company's President and Chief Executive Officer), or at a time
determined in the sole discretion of L. Xxx Xxxxxxxx, the Company's President
and Chief Executive Officer, or as of the close of business on October 31, 1999,
whichever occurs later (hereinafter "the
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Resignation Date"). The Company will accept Xxxxxxxx'x resignation of all
officer, director, and other positions with the Company and LSI as of such date
and time.
3. The parties agree that Xxxxxxxx'x employment with the Company and
LSI may be terminated PRIOR to the Resignation Date as set forth below:
(a) Notwithstanding any other provision contained in this
Agreement, the parties agree that Xxxxxxxx'x employment automatically
will terminate in the event of Xxxxxxxx'x death.
(b) In the event Xxxxxxxx becomes mentally or physically
disabled, Xxxxxxxx'x employment will terminate as of the date such
disability is established. As used in this Agreement, "disability"
means that Xxxxxxxx sustains a disability which is serious enough that
he is not able to perform the essential functions of his job, with or
without reasonable accommodations, and defined by various state and
federal disability laws. Xxxxxxxx shall be presumed to have such a
disability for the purposes of this Agreement if Xxxxxxxx qualifies,
because of injury, illness, or incapacity, to begin receiving
disability income insurance payments under the long-term disability
income insurance policy that the Company maintains for the benefit of
its officers generally. If there is no such policy in effect at the
date of Xxxxxxxx'x injury, illness, or incapacity, Xxxxxxxx shall be
presumed to have such a disability for the purpose of this Agreement if
Xxxxxxxx is substantially incapable of performing his duties for a
period of more than twelve (12) weeks.
(c) The Company may terminate Xxxxxxxx'x employment for cause
without notice to Xxxxxxxx. For purpose of this Agreement, "cause"
shall mean Xxxxxxxx:
(i) has engaged in any willful and material
misconduct, including willful and material failure to perform
his duties as an officer or employee of the Company, and has
failed to cure such default within thirty (30) days after
receipt of written notice of such conduct from the Company; or
(ii) has committed fraud, misappropriation, or
embezzlement with the Company's business or assets; or
(iii) has been convicted or pleaded nolo contendere
to criminal misconduct (excluding misdemeanors or traffic
violations); or
(iv) has used narcotics, liquor, or illicit drugs
resulting in a detrimental effect on the performance of his
employment responsibilities.
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(d) Notwithstanding the provisions of subparagraph 3(c) above,
the Company may terminate Xxxxxxxx'x employment for any reason, whether
or not such reason constitutes cause, so long as the Company complies
with the provisions of paragraph 10 below.
(e) Xxxxxxxx may terminate his employment with the Company for
good reason. For purposes of this Agreement, "good reason" shall mean a
material diminution in Xxxxxxxx'x duties and responsibilities such that
he is no longer an executive management employee of the Company.
(f) Xxxxxxxx may terminate his employment with the Company for
any reason upon thirty (30) days written notice to the Company.
4. The parties agree that, should Xxxxxxxx'x employment with the
Company be terminated by reason of Xxxxxxxx'x death as set forth in subparagraph
3(a) above, his wife, or if she is no longer living, then his estate, shall be
entitled to receive any salary earned prior to such termination and a pro rata
amount of any bonus earned prior to such termination. In addition, Xxxxxxxx'x
wife, or if she is no longer living, then Xxxxxxxx'x estate shall be eligible to
receive the payments and benefits set forth in paragraph 10 below. However, the
Company shall have no obligation to provide those payments or benefits to
Xxxxxxxx'x wife or estate until Xxxxxxxx'x wife or a representative of
Xxxxxxxx'x estate executes a general release of claims in a form acceptable to
the Company and until any required recission and revocation periods have passed
without Xxxxxxxx'x wife or a representative of Xxxxxxxx'x estate exercising her
or his recission and revocation rights.
5. The parties agree that, should Xxxxxxxx'x employment with the
Company be terminated by reason of Xxxxxxxx'x disability as set forth in
subparagraph 3(b) above, Xxxxxxxx shall be entitled to receive any salary earned
prior to such termination and a pro rata amount of any bonus earned prior to
such termination. In addition, Xxxxxxxx shall be eligible to receive the
payments and benefits set forth in paragraph 10 below. However, the Company
shall have no obligation to provide those payments and benefits to Xxxxxxxx
until after Xxxxxxxx has executed the General Release attached hereto as Exhibit
A and until after the recission and revocation periods contained in paragraph 3
of the General Release attached hereto as Exhibit A have passed without Xxxxxxxx
exercising his recission and revocation rights. The amount of payments and
benefits due under paragraph 10 below shall be reduced by any payments to which
Xxxxxxxx may be entitled for the same period because of disability under any
disability or pension plan or program of the Company or as a result of any
workers' compensation or non-occupational disability payments received by
Xxxxxxxx from any governmental entity.
6. The parties agree that, should Xxxxxxxx'x employment with the
Company be terminated for good cause as set forth in subparagraph 3(c) above, no
further payments
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or benefits shall be required to be paid or provided by the Company to Xxxxxxxx
under paragraph 10 below or any other provision of this Agreement except for
Xxxxxxxx'x salary earned prior to such termination.
7. The parties agree that, should Xxxxxxxx'x employment with the
Company be terminated without good cause as set forth in subparagraph 3(d)
above, Xxxxxxxx shall (1) be entitled to receive any salary earned prior to such
termination and (2) a pro rata amount of any bonus earned prior to such
termination. In addition, Xxxxxxxx shall be entitled to receive the payments and
benefits provided for in paragraph 10 below. However, the Company shall have no
obligation to provide those payments and benefits to Xxxxxxxx until after
Xxxxxxxx has executed the General Release attached hereto as Exhibit A and until
after the recission and revocation periods contained in paragraph 3 of the
General Release attached hereto as Exhibit A have passed without Xxxxxxxx
exercising his recission and revocation rights.
8. The parties agree that, should Xxxxxxxx'x employment with the
Company be terminated for good reason as set forth in subparagraph 3(e) above,
Xxxxxxxx shall be entitled to receive any salary earned prior to such
termination and a pro rata amount of any bonus earned prior to such termination.
In addition, Xxxxxxxx shall be entitled to receive the payments and benefits
provided for in paragraph 10 below. However, the Company shall have no
obligation to provide those payments and benefits to Xxxxxxxx until after
Xxxxxxxx has executed the General Release attached hereto as Exhibit A and until
after the recission and revocation periods contained in paragraph 3 of the
General Release attached hereto as Exhibit A have passed without Xxxxxxxx
exercising his recission and revocation rights.
9. The parties agree that, should Xxxxxxxx'x employment with the
Company be terminated by Xxxxxxxx as set forth in subparagraph 3(f) above, no
further payments or benefits shall be required to be paid or provided by the
Company to Xxxxxxxx under paragraph 10 below, or any other provision of this
Agreement except for Xxxxxxxx'x salary earned prior to such termination.
10. As consideration for Xxxxxxxx'x promises and obligations under this
Agreement, including, but not limited to, Xxxxxxxx'x agreement to release any
and all claims against the Company as provided in paragraph 15 of this Agreement
and Exhibit A to this Agreement, and subject to the terms hereof, the Company
agrees as follows:
(a) The Company, after the Resignation Date, will continue, as
separation pay, Xxxxxxxx'x then current annual gross salary, less
legally required deductions and withholding, for a period terminating
twelve (12) months after the Resignation Date. This separation pay will
be paid to Xxxxxxxx at regular, periodic payroll intervals in
accordance with the payroll practices in effect immediately before
Xxxxxxxx'x resignation. The amount of the separation pay
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shall not be reduced by any compensation earned by Xxxxxxxx as a result
of any employment by any other employer and/or consulting work.
(b) Following the Resignation Date, for the period of time
Xxxxxxxx is receiving separation pay from the Company, Xxxxxxxx may
participate in, at the Company's expense, the group health insurance
plans or programs Xxxxxxxx participates in at the time of Xxxxxxxx'x
resignation, including, if applicable, coverages then in effect for
Xxxxxxxx'x family members; provided that: (i) if the Company determines
that such participation would have adverse effect on the underwriting,
regulatory, or tax treatment intended for such plans or programs, then
the Company may, at its option and expense, make other arrangements
which will provide Xxxxxxxx and such family members with comparable
benefits; and (ii) the Company's obligation to provide health benefits
shall terminate when (a) Xxxxxxxx is covered under another company's
group health plan, (b) Xxxxxxxx is eligible (whether or not covered)
under Medicare, or (c) Xxxxxxxx dies. The benefits described herein
shall be in addition to any rights Xxxxxxxx has under federal or state
law, including COBRA.
(c) The Company agrees to provide Xxxxxxxx with a letter of
reference in the form of the letter attached hereto as Exhibit B.
(d) The Company will allow Xxxxxxxx to retain the laptop
computer provided to him by the Company.
(e) All of items of remuneration or benefit not specifically
mentioned in subparagraphs 10(a) through 10(d) above, including, but
not limited to, unused or accrued vacation, bonuses, and commissions
are included in said separation pay and benefits, and, other than as
set forth in paragraphs 4, 5, 7, and 8 above, Xxxxxxxx has no further
claim to any other items of remuneration or benefits following the
Resignation Date.
11. As an essential inducement to the Company to enter into this
Agreement, Xxxxxxxx agrees as follows:
(a) Xxxxxxxx acknowledges that, during his employment with the
Company and LSI, he was exposed to, or acquired, confidential
information as defined in this subparagraph. Xxxxxxxx understands and
agrees that such confidential information was disclosed to him in
confidence and for the sole benefit of the Company and LSI. Xxxxxxxx
agrees that he will : (i) diligently protect the confidentiality of all
confidential information; (ii) not disclose or communicate any
confidential information to any third party without the consent of the
Company; and (iii) not make use of confidential information on his own
behalf or on behalf of any third party. When confidential information
becomes
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generally available to the public by means other than Xxxxxxxx'x acts
or omissions, it is no longer subject to this subparagraph. Xxxxxxxx
expressly acknowledges that the undertaking set forth in this
subparagraph shall survive indefinitely, notwithstanding the expiration
or termination of other agreements or duties in this Agreement. As used
in this Agreement, "confidential information" means information not
generally known that is proprietary to the Company and/or LSI. This
information includes, but is not limited to, trade secret information
about the Company's and/or LSI's processes, products, and business,
such as information relating to research, development, manufacture,
purchases, accounting, engineering, marketing, merchandising, selling,
leasing, servicing, customers, finance, and business systems and
techniques. This information also includes, but is not limited to,
written lists of the customers of the Company and/or LSI. All
information which was disclosed to Xxxxxxxx or to which Xxxxxxxx
obtained access, during the period of his employment, that he had
reasonable basis to be confidential information shall be presumed to be
confidential information. This applies whether the confidential
information was originally identified by Xxxxxxxx or others.
(b) Upon the Resignation Date, Xxxxxxxx shall deliver promptly
to the Company all records, manuals, books, forms, documents, letters,
memoranda, notes, notebooks, reports, data, computer files, tables,
calculations, or copies thereof that are the property of the Company or
which relate in any way to the business, products, or practices of the
Company, and all other property including, but not limited to, all
documents or databases which in whole or in part contain trade secrets
or confidential information of the Company which are in Xxxxxxxx'x
possession or control.
(c) In the event of a breach or threatened breach by Xxxxxxx
of the provisions of subparagraphs 11(a) and/or 11(b) above, during or
after the term of this Agreement, the Company shall be entitled to
injunctive relief restraining Xxxxxxxx from violation of such
subparagraph. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedy at law or in equity it may have
in the event of breach or threatened breach of such subparagraphs by
Xxxxxxxx.
12. Xxxxxxxx agrees that he will cooperate with the Company and LSI
with respect to any claims or lawsuits brought or threatened to be brought
against the Company and/or LSI and their predecessors, successors, assigns,
subsidiaries, and affiliates, and their officers, directors, employees, and
agents, which claims or lawsuits relate to or involve Xxxxxxxx'x employment by
the Company and/or LSI or any transactions, decisions, or actions of the Company
and/or LSI in which Xxxxxxxx was involved while an employee (hereinafter the
"Covered Subjects"). As part of Xxxxxxxx'x agreement to cooperate, Xxxxxxxx
agrees to make himself available upon reasonable
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notice at mutually agreeable times to discuss with the Company and/or LSI and
their counsel issues related to litigation or potential litigation exposure with
respect to Covered Subjects. Xxxxxxxx also agrees to appear without subpoena for
deposition or testimony at the request of the Company and/or LSI in connection
with claims or lawsuits relating to Covered Subjects. The Company and LSI agree
that, when their requests require Xxxxxxxx to travel, they will pay Xxxxxxxx'x
reasonable expenses, including "out-of-pocket" expenses and documented lost
wages consistent with the Company's policy governing reimbursement to its
employees.
13. Xxxxxxxx shall not initiate any press releases or solicit any news
coverage with respect to Xxxxxxxx'x separation from the Company and LSI or this
Agreement.
14. Xxxxxxxx will not make any remarks, whether written or oral,
disparaging of the Company and/or LSI, their officers, directors, or employees.
15. By this Agreement, Xxxxxxxx intends to settle any and all claims
that he has or may have against the Company and/or LSI as a result of the
Company's and/or LSI's hiring Xxxxxxxx, Xxxxxxxx'x employment with the Company
and/or LSI, or the cessation of Xxxxxxxx'x employment with the Company and/or
LSI, or any act, occurrence, or omission occurring prior to the date of this
Agreement. For the consideration expressed herein, Xxxxxxxx hereby releases,
acquits, satisfies, and forever discharges the Company and LSI, their
predecessors, successors, assigns, parents, affiliates, subsidiaries, and
related companies, their officers, directors, shareholders, agents, servants,
employees, and insurers from all liability for damages and agrees not to
institute any claim for damages, nor authorize any other party, governmental or
otherwise, to seek individual remedies for Xxxxxxxx via administrative or legal
proceedings. Xxxxxxxx'x release of claims is intended to extend to and include,
among other things, claims of any kind arising under or based upon the Minnesota
Human Rights Act, Minn. Stat. xx.xx. 363.01, et seq., the California Fair
Employment and Housing Act, Cal. Gov't Code ss. 12900, et seq.; Title VII of the
Civil Rights Act, 42 U.S.C. xx.xx. 2000e, et seq.; the Age Discrimination in
Employment Act, 29 U.S.C. xx.xx. 621, et seq.; the Employee Retirement Income
Security Act of 1973, 29 U.S.C. xx.xx. 1001, et seq.; the Americans with
Disabilities Act, 42 U.S.C. xx.xx. 12101, et seq.; and any other federal, state,
or local law, rule, or regulation prohibiting employment discrimination or
otherwise relating to employment; and any claims based upon, among other things,
common law theories of recovery, including, but not limited to, those in
contract, quasi-contract, or tort; and any claims based upon any other theory,
whether legal or equitable, arising from or related to any matter or fact
arising prior to the signing this Agreement, including, but not limited to, any
matter or fact arising out of the events giving rise to this Agreement.
16. Xxxxxxxx acknowledges that he is familiar with the provisions of
California Civil Code ss. 1542 and, to the extent California Civil Code ss. 1542
is applicable to this
8
Agreement, he waives California Civil Code ss. 1542 to the full extent permitted
by law. California Civil Code ss. 1542 states:
A general release does not extend to claims which the
creditor does not know or expect to exist in his favor at the
time of executing the release, which if known by him must
have materially affected his settlement with the debtor.
Xxxxxxx waives any and all rights and benefits conferred by any law of any state
or territory of the United States or any foreign country, or principle of common
law, which is similar, comparable, or equivalent to California Civil Code ss.
1542.
17. Xxxxxxxx has been informed of his right to revoke this Agreement
insofar as it extends to potential claims under the Age Discrimination in
Employment Act, 29 U.S.C. xx.xx. 621, et seq., by informing the Company of his
intent to revoke this Agreement within seven (7) calendar days after his
execution of this Agreement.
Xxxxxxxx has been informed of his right to rescind this Agreement
insofar as it extends to potential claims under the Minnesota Human Rights Act,
Minn. Xxxx.xx.xx. 363.01, et seq., by written notice to the Company within
fifteen (15) calendar days after his execution of this Agreement. Xxxxxxxx has
been informed and he understand that any such recission must be in writing and
delivered to the Company in care of Xxx Xxxxxxx, Esq., by hand or mail within
the applicable time period. If delivered by mail, the recission must be: (i)
postmarked within the applicable period; (ii) sent by certified mail, return
receipt requested; and (iii) addressed as follows: Xxx Xxxxxxx, Esq., Minnesota
Corn Processors, Inc., 000 Xxxxx Xxxxxxx 00, Xxxxxxxx, XX 00000-0000.
18. Xxxxxxxx has also been informed that the terms of this Agreement
will be open for acceptance and execution by him for a period of twenty-one (21)
days during which time he may consult with an attorney and consider whether to
accept this Agreement. Changes to this Agreement, whether material or
immaterial, will not restart the running of this twenty-one (21) day acceptance
period.
19. Xxxxxxxx understands that, in the event of any such revocation or
recission as provided for in paragraph 17 above, the Company may, at its option,
either nullify this Agreement in its entirety or keep it in effect as to all
claims not revoked or rescinded in accordance with the revocation or recission
provisions of paragraph 17 above. In the event the Company opts to nullify the
entire Agreement, Xxxxxxxx understands that the Company will have no obligations
under this Agreement to him or others whose rights derive from him, and Xxxxxxxx
agrees to repay to the Company any payments made to him or benefits conferred
upon him pursuant to this Agreement prior to the date of revocation or
recission.
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20. As a condition precedent to the rights and benefits conferred under
this Agreement, Xxxxxxxx agrees to execute, on the Resignation Date, the General
Release attached hereto as Exhibit A and by this reference incorporated herein.
The Company shall have no obligations to Xxxxxxxx under this Agreement until
after Xxxxxxxx has executed the General Release attached hereto as Exhibit A,
and until after the revocation and recission periods contained in paragraph 3 of
the General Release attached hereto as Exhibit A have passed without Xxxxxxxx
exercising his revocation and recission rights. Xxxxxxxx understands that, in
the event of any such revocation or recission as provided for in paragraph 3 of
the General Release attached hereto as Exhibit A, the Company may, at its
option, either nullify this Agreement in its entirety or keep it in effect as to
all claims not revoked or rescinded in accordance with the revocation or
recission provisions of paragraph 3 of the General Release attached hereto as
Exhibit A. In the event the Company opts to nullify the entire Agreement,
Xxxxxxxx understands that the Company will have no obligations under this
Agreement to him or others whose rights derive from him, and Xxxxxxxx agrees to
repay to the Company any payments made to him or benefits conferred upon him
pursuant to this Agreement prior to the date of revocation or recission.
21. If Xxxxxxxx breaches any material obligation imposed under this
Agreement, including, but not limited to, the covenants set forth in paragraph
11 above, the Company shall have the right to terminate this Agreement and all
further obligations the Company has under this Agreement to Xxxxxxxx or to
others whose rights may derive from him will cease.
22. This Agreement (including the attached Exhibits A and B) contains
the entire understanding between the parties with respect to the subject matter
of this Agreement. This Agreement supersedes, terminates, replaces, and
supplants the terms and conditions of any and all other agreements and any and
all amendments thereto, whether written or oral, and discussions and
understandings between the parties relating in any way to the hiring or
employment of Xxxxxxxx by the Company and/or LSI or the cessation of such
employment.
23. This Agreement may not be modified, altered, or amended except by
an instrument in writing, signed by the parties hereto. No term or condition of
this Agreement shall be deemed to have been waived, nor shall there be any
estoppel against enforcement of any provision of this Agreement, except by
written instrument of the party charged with such waiver or estoppel. No such
written waiver shall be deemed a continuing waiver unless it is specifically
stated therein, and each such waiver shall operate only as to the specific term
or condition waived and shall not constitute a waiver of such term or condition
for the future or as to any act other than that specifically waived.
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24. Xxxxxxxx agrees to keep the terms and existence of this Agreement
confidential (with the exception of the provisions of paragraph 11 above and the
contents of Exhibit B) and agrees not to disclose any such information to any
person other than his present or future attorneys, accountants, tax advisors,
immediate family, or as may be required in response to a court order, subpoena,
or valid inquiry by a government agency or regulator. Xxxxxxxx further agrees
that if any information concerning the terms or existence of this Agreement is
revealed as permitted by this paragraph, he shall inform the recipient of the
information that it is confidential.
25. The validity, interpretation, construction, performance,
enforcement, and remedies of or relating to this Agreement, and the rights and
obligations of the parties hereunder, shall be governed by the laws of the State
of Minnesota.
26. Xxxxxxxx and the Company agree that this Agreement is not an
admission by the Company of any wrong doing or of any acts that might be
considered a violation of a federal, state, or local law, rule, or regulation,
or a breach of any agreement, with respect to the employment of Xxxxxxxx or
otherwise, and that this Agreement should not be interpreted as such.
27. If any provision of this Agreement is held to be illegal, invalid,
or unenforceable under the present or future laws, rules, or regulations, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision, there shall be added automatically as part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid, and enforceable.
28. Xxxxxxxx may not assign any of his rights, or delegate any of his
duties or obligations under this Agreement. The rights and obligations of the
Company under this Agreement shall inure to the benefit of and be binding upon
the successors (by purchase, merger, consolidation, or otherwise) and assigns of
the Company. In the event Xxxxxxxx dies before all payments due to him under
this Agreement have been made, then all such payments shall continue to be made
to his wife, or, if she is no longer living, then to his estate.
29. Xxxxxxxx has read this Agreement and agrees to the conditions and
obligations set forth. Further, Xxxxxxxx agrees that he has had adequate time to
consider the terms of this Agreement, that he is voluntarily entering into this
Agreement with a full understanding of its meaning, and that he has been advised
to consult with an attorney prior to the signing of this Agreement.
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30. Xxxxxxxx understands and agrees that the Employment and Separation
Agreement and General Release will not constitute a binding and an effective
Agreement until both the Employment and Separation Agreement and General Release
are signed by L. Xxx Xxxxxxxx, the Company's President and Chief Executive
Officer.
IN WITNESS WHEREOF, Xxxxxxxx and the Company, acting through its Board
of Directors after due consideration and authorization, have executed this
Agreement by their signatures below.
Date: June 25, 1999 /s/ Xxxxxx X. Xxxxxxxx
----------------- -----------------------------------------
Xxxxxx X. Xxxxxxxx
MINNESOTA CORN PROCESSORS, INC.
Date: June 28, 1999 By: /s/ L. Xxx Xxxxxxxx
----------------- ------------------------------------
Its: President
------------------------------------
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EXHIBIT A
GENERAL RELEASE
This General Release is made and entered into as of the 2nd day of
September, 1999, by and between Minnesota Corn Processors (hereinafter "the
Company") and Xxxxxx X. Xxxxxxxx (hereinafter "Xxxxxxxx").
WHEREAS, Xxxxxxxx and the Company are parties to an Employment and
Separation Agreement (hereinafter "Agreement") dated June 28, 1999;
WHEREAS, Xxxxxxxx and the Company intend to settle any and all claims
that Xxxxxxxx may have against the Company as a result of any act, occurrence,
omission occurring subsequent to the signing of the Agreement and prior to the
signing of this General Release, including, but not limited to, any matter or
fact arising out of the events giving rise to the Agreement or this General
Release;
WHEREAS, under the terms of the Agreement, which Xxxxxxxx agrees is
fair and reasonable, Xxxxxxxx agreed to enter into this General Release as a
condition precedent to the separation payments and benefits conferred under the
Agreement;
NOW, THEREFORE, in consideration of the provisions and the mutual
covenants contained herein, the parties agree as follows:
1. For the consideration expressed in the Agreement, Xxxxxxxx intends
to settle any and all claims that he has or may have against the Company and
Liquid Sugars, Inc. (hereinafter "LSI") as a result of the Company's and/or
LSI's hiring Xxxxxxxx, Xxxxxxxx'x employment with the Company and/or LSI, or the
cessation of Xxxxxxxx'x employment with the Company and/or LSI, or any act,
occurrence, or omission occurring subsequent to the signing of the Agreement and
prior to the signing of this General Release, including, but not limited to, any
matter or fact arising out of the events giving rise to the Agreement or this
General Release. For the consideration expressed in the Agreement, Xxxxxxxx
hereby releases, acquits, satisfies, and forever discharges the Company and LSI,
their predecessors, assigns, parents, affiliates, subsidiaries, and related
companies and their officers, directors, shareholders, agents, servants,
employees, and insurers from all liability for damages and agrees not to
institute any claim for damages, nor otherwise authorize any other party,
governmental or otherwise, to seek individual remedies for Xxxxxxxx via
administrative or legal proceedings. Xxxxxxxx'x release of claims is intended to
extend to and include, among other things, claims of any kind arising under or
based upon the Minnesota Human Rights Act, Minn. Stat. xx.xx. 363.01, et seq.;
the California Employment and Housing Act, Cal. Gov't Code ss. 12900, et seq.;
Title VII of the Civil Rights Act, 42 U.S.C. xx.xx. 2000e, et seq.; the Age
Discrimination in Employment Act, 29 U.S.C. xx.xx. 621, et seq.; the Employee
Retirement Income Security Act of 1973, 29 U.S.C. xx.xx. 1001, et seq.; the
Americans with Disabilities Act, 42 U.S.C.
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xx.xx. 12101, et seq.; and any other federal, state, or local law, rule, or
regulation prohibiting employment discrimination or otherwise relating to
employment; any claims based upon, among other things, common law theories of
recovery, including, but not limited to, those in contract, quasi-contract, or
tort; and any claims based upon any other theory, whether legal or equitable,
arising from or related to any matter or fact arising subsequent to the signing
the Agreement and prior to the signing this General Release, including, but not
limited to, any matter or fact arising out of the events giving rise to the
Agreement or this General Release.
2. Xxxxxxxx acknowledges that he is familiar with the provisions of
California Civil Code ss. 1542 and, to the extent California Civil Code ss. 1542
is applicable to this General Release, he waives California Civil Code ss. 1542
to the full extent permitted by law. California Civil Code ss. 1542 states:
A general release does not extend to claims which the
creditor does not know or expect to exist in his favor at the
time of executing the release, which if known by him must
have materially affected his settlement with the debtor.
Xxxxxxxx waives any and all rights and benefits conferred by any law of any
state or territory of the United States or any foreign country, as principle of
common law, which is similar, comparable, or equivalent to California Civil Code
ss. 1542.
3. Xxxxxxxx has been informed of his right to revoke this General
Release insofar as it extends to potential claims under the Age Discrimination
in Employment Act, 29 U.S.C. xx.xx. 621, et seq., by informing the Company of
his intent to revoke this General Release within seven (7) calendar days after
his execution of this General Release.
Xxxxxxxx has been informed of his right to rescind this General Release
insofar as it extends to potential claims under the Minnesota Human Rights Act,
Minn. Xxxx.xx.xx. 363.01, et seq., by written notice to the Company within
fifteen (15) calendar days after his execution of this General Release. Xxxxxxxx
has been informed and he understands that any such recission must be in writing
and delivered to the Company in care of Xxx Xxxxxxx, Esq., by hand or mail
within the applicable time period. If delivered by mail, the recission must be:
(i) postmarked within the applicable period; (ii) sent by certified mail, return
receipt requested; and (iii) addressed as follows: Xxx Xxxxxxx, Esq., Minnesota
Corn Processors, 000 Xxxxx Xxxxxxx 00, Xxxxxxxx, XX 00000-0000.
4. Xxxxxxxx understands that, in the event of any such revocation or
recission as provided for in paragraph 3 of this General Release, the Company
may, at its option, either nullify the Agreement in its entirety or keep it in
effect as to all claims not revoked or rescinded in accordance with the
revocation or recission provision of paragraph 3 of
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this General Release. In the event the Company opts to nullify the entire
Agreement, Xxxxxxxx understands that the Company will have no obligations under
the Agreement to him or others whose rights derive from him, and Xxxxxxxx agrees
to repay to the Company any payments made to him or benefits conferred upon him
pursuant to the Agreement prior to the date of revocation or recission.
5. If Xxxxxxxx violates any material obligation imposed under either
this General Release or the Agreement, including, but not limited to, the
covenants set forth in paragraph 11 of the Agreement, the Company shall have the
right to terminate the Agreement and all further obligations the Company has or
may have under the Agreement to Xxxxxxxx or to others whose rights may derive
from him will cease.
6. This General Release shall be binding upon, and inure to the benefit
of, Xxxxxxxx and the Company and their respective successors and permitted
assigns.
7. Xxxxxxxx hereby acknowledges and states that he has read this
General Release and the Agreement and that he has been advised to consult with
an attorney prior to signing this General Release. Xxxxxxxx further represents
that he has had adequate time to consider the terms of this General Release and
the Agreement, that this General Release is written in language which is
understandable to him, that he fully appreciates the meaning of the terms of
this General Release, and that he enters into this General Release freely and
voluntarily.
IN WITNESS WHEREOF, Xxxxxxxx, after due consideration, has authorized,
executed, and delivered this General Release all as of the date first written
above.
Date: September 2, 1999 /s/ Xxxxxx X. Xxxxxxxx
----------------- -----------------------------------------
Xxxxxx X. Xxxxxxxx
MINNESOTA CORN PROCESSORS, INC.
Date: June 28, 1999 By: L. Xxx Xxxxxxxx
----------------- ------------------------------------
Its: President
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