EXHIBIT 10.13
EMPLOYEE SEPARATION AGREEMENT AND RELEASE
THIS EMPLOYEE SEPARATION AGREEMENT AND RELEASE (the "AGREEMENT") is
made and entered into effective as of the "OFFER DATE", for certain purposes,
and the "EFFECTIVE DATE", for all other purposes, each as set forth on the
signature page hereto, by and between INSITUFORM TECHNOLOGIES, INC., a Delaware
corporation, or one of its subsidiaries as shown on the signature page hereto
("EMPLOYER"), and the individual listed on the signature page hereto
("EMPLOYEE").
PRELIMINARY STATEMENT
A. Employee's employment with Employer terminated (or will terminate)
as of the date shown on the signature page hereto ("EMPLOYMENT TERMINATION
DATE").
B. Employer and Employee desire to resolve all matters relating to or
arising out of Employee's employment by Employer and Employee's subsequent
termination.
C. Employee has been (or is being) provided at least twenty-one (21)
days from the offer date set forth on the signature page hereto (the "OFFER
DATE") to consider the meaning and effect of this Agreement prior to accepting
this Agreement (the "ACCEPTANCE DATE"), except as otherwise provided herein.
Employee has been (or hereby is) advised in writing to consult with an attorney
prior to executing 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. EMPLOYMENT TERMINATION; ACCEPTANCE. Employee voluntarily resigns all
of his executive officer positions and offices with Employer and any of its
subsidiaries and plans as of the Offer Date. The employment of Employee by
Employer, in any capacity whatsoever, ceased (or will cease) as of the
Employment Termination Date, except as provided on the signature page to this
Agreement. Any and all right or authority of Employee to act as an agent of
Employer, in any manner whatsoever, terminated (or will terminate) on the Offer
Date. If Employee does not return a signed copy of this Agreement to Employer by
the Acceptance Date (which is 30 days after the date this Agreement was given to
Employee), then this Agreement shall be null, void and of no force or effect,
except for Employee's resignation from all executive officer positions and
offices with Employer and any of its subsidiaries and plans.
2. SEPARATION PAYMENTS.
(a) PAYMENTS. As consideration for this Agreement, Employer agrees
to pay Employee the amounts set forth on the signature page hereto as shown on
the signature page hereto (the "SEPARATION PAYMENTS").
(b) GENERAL. All Separation Payments shall be made subject to any
applicable federal, state and local income tax or other appropriate withholding
requirements. Further, the Separation Payments represent all of the compensation
(including vacation and severance pay) to which Employee is, or may be, entitled
by virtue of Employee's employment and separation from employment with Employer.
This Section 2, however, shall have no force or effect if Employee revokes
Employee's acceptance of this Agreement pursuant to Section 9 hereof.
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3. EMPLOYEE REPRESENTATIONS AND RELEASE.
(a) REPRESENTATIONS. Employee represents and warrants to Employer
that (i) Employee (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) Employee has not assigned to any other person or entity any right(s) or
claim(s) Employee may have against Employer; (iii) in deciding to execute this
Agreement (A) no fact, evidence, event or transaction currently unknown to
Employee, but which may hereinafter become known to Employee, shall affect in
any way or any manner the final or unconditional nature of this Agreement; (B)
Employee's execution of this Agreement is a knowing and voluntary act on
Employee's part; (C) Employee has read and fully understands the terms of this
Agreement, including the final and binding nature and effect of Employee's
waiver of rights by execution of this Agreement; and (D) Employee has been
provided with time to consult with legal counsel as to the meaning of this
Agreement, and Employee has relied solely upon the judgment of Employee's legal
counsel in determining to execute this Agreement. In addition, Employee hereby
represents and warrants that, to the best of his knowledge, Employee has
disclosed to Employer, either on or prior to the Offer 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.
(b) WAIVER AND RELEASE. Employee hereby waives any and all rights or
claims for liability Employee 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 and agents (collectively, "RELEASED
PARTIES") in connection with, relating to or arising out of Employee's
employment with Employer (or any Released Parties) or out of the termination of
Employee's employment with Employer (or any Released Parties). Further, EMPLOYEE
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 (including any specifically
listed on the signature page hereto) 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; other alleged age discrimination or other employment discrimination
(including any specifically listed on the signature page hereto), 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 Employee's employment with Employer (or any
Released Parties) or out of the termination of Employee's employment with
Employer (or any Released Parties).
Except with respect to obligations under this Agreement, or matters
which the Employer would not be able to indemnify Employee, Employer hereby
releases, gives up and waives any and all rights or claims for liability
Employer may now or in the future have against Employee in connection with,
relating to or arising out of Employee's employment with Employer. Further,
except as excluded above, EMPLOYER HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY
AND UNCONDITIONALLY, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES EMPLOYEE
of and from any and all manner of claims, actions, charges, complaints, causes
of
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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 Employee's employment with Employer.
(c) 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 Employee
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 Employee. Employee agrees that
neither this Agreement nor performance hereunder constitutes an admission by
Employer of any violation of any Employer policy, federal, state or local law,
regulation, common law, or any breach of any contract or any other wrongdoing of
any type.
4. COVENANT NOT TO XXX; INDEMNIFICATION. Employee 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
Employee by Section 3 of this Agreement, other than an action against Employer
to enforce Employee's rights contained herein. If Employee enters into any such
suit, action or other proceeding in violation of this Section 4, Employee 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. Employer
shall indemnify Employee to the full extent permitted by Section 145 of the
Delaware General Corporation Law, as amended, from time to time.
5. CONFIDENTIALITY; NONSOLICITATION AND NONCOMPETITION.
(a) CONFIDENTIALITY. Employee acknowledges the competitive nature of
the Employer's business and reaffirms Employee's prior written covenant that any
information acquired by Employee regarding the Employer's business, its
directors, officers and employees (whether or not such information is marked
confidential) shall be considered the Employer's confidential information. In
furtherance and not limitation of those prior agreements, Employee agrees not to
disclose to anyone (other than Employer), or use for Employee'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, any information relating to production
or sales or any other information acquired by Employee regarding Employer's
business, its directors, officers, and employees (whether or not such
information is marked confidential). Furthermore, Employee agrees to immediately
return to Employer all Employer property and any information (including any
copies thereof) which Employee has received, prepared or helped to prepare
during the course of Employee's employment with Employer.
(b) NONSOLICITATION. In consideration of the Separation Payments,
and in furtherance and not limitation of any prior agreement between Employee
and Employer with respect to nonsolicitation matters, Employee acknowledges and
agrees that, during the period listed on the signature page hereto, Employee
will not, in any manner or at any time, solicit or encourage any person, firm,
corporation or other business entity to
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cease doing business with Employer or solicit or encourage any employee(s) of
Employer to cease being an employee of Employer.
(c) NONCOMPETE PERIOD. In consideration of the Separation Payments,
and in furtherance and not limitation of any prior agreement between Employee
and Employer with respect to noncompete matters, Employee agrees that during the
period listed on the signature page hereto, Employee will not engage in or enter
the employ of, or have any interest in, directly or indirectly, any other
person, firm, corporation or other entity engaged in any business activities
competitive with any business carried on by Employer. Although Employer's
interests are international in scope, the geographic area for purposes of this
restriction shall be the continental United States.
(d) EQUITABLE RELIEF. Employee acknowledges and agrees that (i) any
breach of this Agreement by Employee, including any breach of the terms of this
Section 5, 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 Employee 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 Employee or any
person with whom Employee may be affiliated. Employee hereby waives the claim or
defense that Employer has an adequate remedy at law and Employee shall not claim
that an adequate remedy at law exists. Further, Employee 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 5 shall survive any
termination of this Agreement.
6. NONDISCLOSURE; NO DISPARAGING REMARKS; NO RE-APPLICATION. Employee
agrees that the terms of this Agreement will not be discussed by Employee with,
or otherwise disclosed by Employee to, any person other than Employee's
attorney, including any present or former employee of Employer, its
shareholders, affiliates, subsidiaries or predecessors in interest. Employee
agrees that Employee will not disparage Employer or portray Employer in a
negative light. Employee agrees that a breach by Employee 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, Employee agrees to pay to Employer, as liquidated
damages (and not as a penalty), an amount equal to the Separation Payments for
any (and each) such breach. Employee 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.
Employee 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, Employee agrees that Employer shall not be
required to give any consideration to such re-application.
Employer agrees that Employer will not disparage Employee. For
purposes of the foregoing, only statements made by Employer's directors,
executive officers and human resource directors will be attributed to Employer.
7. 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 Employee's employment with
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Employer 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 Employee, 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, including
those specifically listed on the signature page hereto.
(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 of all other parties 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 identified on the signature page hereto, 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. If any legal action
or other proceeding is brought for the enforcement of this Agreement, or because
of an alleged dispute, breach, default or misrepresentation in connection with
any of the provisions of this Agreement, the successful or prevailing party
shall be entitled to recover reasonable attorneys' fees and other costs incurred
in that action or proceeding, in addition to any other relief to which it or
they may be entitled.
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(f) 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 Employee shall immediately return to Employer any
consideration paid hereunder.
(g) 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.
(h) 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.
[signature page next]
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8. REVIEW BY EMPLOYEE. Employee acknowledges that this Agreement has
been reviewed in detail with Employee, that its language and intended effect
have been explained, and that Employee has reviewed this Agreement with an
attorney of Employee's choice. Employee also acknowledges that Employee has
voluntarily entered into this Agreement of Employee's own free will based only
upon the terms and conditions set out herein.
9. EMPLOYEE'S RIGHT TO REVOKE. Employee may revoke this Agreement for a
period of seven (7) days after execution by Employee, and this Agreement shall
not become effective or enforceable until such period has expired, except
Employee's resignation from all executive officer positions and offices with
Employer and any of its subsidiaries and plans shall be effective on the Offer
Date and shall be irrevocable.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Offer Date.
EMPLOYEE: EMPLOYER:
INSITUFORM TECHNOLOGIES, INC.
/s/ Xxxxxx X. Xxxxx
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Print Name: Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
SSN: Name: Xxxxxx X. Xxxxxx, Xx.
Address: Title: President and CEO
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State Governing Law: Missouri
Specifically Release State Missouri Human Rights Act, Mo. Rev. Stat. ss.213.010
et seq., Missouri's Workers' Compensation
Statutes: Law, Mo. Rev. Stat. ss.287.010 et seq., and the
Missouri Service Letter Statute, Mo. Rev. Stat.
ss.290.140
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Specifically Surviving Non-Disclosure and Non-Competition Agreement signed
August 17, 1999; Employee Confidentiality
Agreements: Agreement signed August 17, 1999; Business Code of
Conduct booklet signed August 17, 1999; Non-
Competition referenced in your offer letter of
August 19, 1999; Confidentiality Agreement dated
January 4, 2000; Confidentiality, Work Product and
Non-Competition Agreement signed April 17, 2002
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Nonsolicitation Period: Through March 31, 2006
Noncompete Period: Through March 31, 2006
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Employment March 31, 2004 Employee will cease being an executive
Termination officer of Employer on December 4, 2003, but will
Date: be an employee of Mississippi Textiles Corporation
until the Employment Termination Date, unless
terminated for cause. Until the Employment
Termination Date, Employee will make himself
available to Employer for assistance in transition
matters. Employer agrees that Employee may accept a
full time position with another employer prior to
the Employment Termination Date, provided that
Employee makes himself available to Employer for
assistance in transition matters. Employee will
receive his current salary and benefits through this
day. Employee will have option of purchasing COBRA
medical/dental coverage after the Employment
Termination Date. Any vested options that Employee
holds unexercised on the Offer Date will remain
exercisable until the Employment Termination Date,
but any options or other stock awards that are
unvested on the Offer Date will be cancelled and
forfeited by Employee to Employer. Employee
acknowledges and agrees that he will remain subject
to Employer's xxxxxxx xxxxxxx policy, which includes
compliance with all blackout periods.
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Offer Date: December 4, 2003
Acceptance Date: January 4, 2004
Effective Date: January 14, 2004
[signature page continued]
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Separation Payment(s): $107,834 Lump sum payment subject to satisfactory
work performance during December 4, 2003--
March 31, 2004 time period. Lump sum
payment to be made on or about March 31,
2004.
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Vacation Pay: Employer agrees to pay Employee any earned but unused vacation
as of Employee's Termination Date. Vacation earned will be at
the rate of 1.25 days per month.
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