EXECUTIVE SEPARATION AGREEMENT AND RELEASE
Exhibit 10.1
EXECUTIVE SEPARATION
AGREEMENT AND RELEASE
THIS EXECUTIVE SEPARATION AGREEMENT
AND RELEASE (the “Agreement”), by and between
INSITUFORM TECHNOLOGIES, INC., a Delaware corporation (“Employer”), and Xxxxxx X.
Xxxxxxx (“Executive”),
is entered into and effective as of this 5th day of
September 2008 (the “Effective
Date”).
Preliminary
Statement
A. Executive
has voluntarily and irrevocably resigned his employment and all officer and
director positions with Employer or its subsidiaries, with such resignations and
the termination of Executive from such officer and director positions effective
as of the Effective Date.
B. Without
any admission as to fault, liability or wrongdoing, to ensure an effective and
smooth transition in leadership, and to avoid the time, distractions and
resource expenditures potentially associated with Executive’s departure,
Employer and Executive desire to resolve all matters relating to or arising out
of Executive’s employment by Employer and Executive’s resignation of his officer
and director positions and the termination of Executive’s employment with
Employer on the terms described below.
C. 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
by Executive from All Officer and Director Positions; Termination of Executive’s
Employment.
(a) Resignation from Officer and Director
Positions. Executive voluntarily resigned from his officer and
director positions with Employer or any of its subsidiaries and from all
positions with any employee benefit plans sponsored by Employer or any of its
subsidiaries on the Effective Date. These resignations were effected
by means of separate resignation letters in the forms attached to this Agreement
as Exhibit A,
Exhibit B and
Exhibit C,
signed and delivered by Executive and accepted by Employer or the subsidiary, as
the case may be, on the Effective Date.
(b) Resignation of Employment with
Employer. Executive likewise has voluntarily and irrevocably
resigned his employment with Employer and any of its subsidiaries effective as
of the Effective Date. The employment of Executive by Employer including, among
other things, any and all right or authority of Executive to act as an agent of
Employer or its subsidiaries, in any capacity whatsoever, will terminate and
cease as of the Effective Date.
2. Separation Benefits. In
consideration for the representations, warranties, covenants and agreements made
by Executive and contained in this Agreement, and provided Executive complies
with the terms of this Agreement, Employer shall agree to make the following
payments (the “Separation
Payments”) under and subject to the terms and conditions stated in this
Agreement:
(a) Separation Payments. (1)
Employer will pay Executive a gross amount of $265,000, less applicable
withholdings for taxes, payable as follows: (a) a lump-sum payment equal to
$162,500 within five (5) business days after the date of this Agreement and (b)
additional payments in the aggregate amount of $102,500 payable in equal
consecutive semi-monthly payments over the twelve-month period beginning
September 16, 2008 until the entire sum is paid in full. Payment will be made on
the Employer’s regular semi-monthly paydays, commencing with the first regular
semi-monthly payday of Employer that occurs after September 16, 2008. In no
event shall the total payments made under this paragraph exceed the sum of
$265,000 in the aggregate. The final installment may be less than the regular
semi-monthly installments to the extent necessary to make this occur. Whether or
not Executive signs this Agreement, he will receive wages or other compensation
for all time worked through the Effective Date, accrued vacation, and any other
accrued leave time which Executive is entitled to under applicable law, through
the Effective Date. Except as provided in this Agreement, no payment,
compensation, leave time, insurance or other benefits, will be furnished or paid
to Executive. Executive acknowledges that Employer may change payroll
dates, schedules or amounts, insurance carriers or benefit plans or otherwise
modify its payroll or benefit plans for its active executives, and those changes
will be applied to Executive as well where applicable. In addition, Executive
shall continue to be entitled to all rights of indemnification provided to
officers of Employer as of this date, to the same extent as other officers of
Employer.
(2) Executive
will be provided outplacement assistance for a period of six months with Quest
Management or such other outplacement firm selected by Employer at Employer’s
expense, provided such expense in the aggregate shall not exceed
$10,000.00. The amount and level of service and assistance will be
determined by Employer, and information concerning the same will be provided by
the outplacement firm selected by Employer.
(3) Provided
Executive chooses to continue his health and medical benefits under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), Employer agrees to
pay the amounts that Employer would have been required to pay for health and
dental benefits for Executive and his eligible family members (the “Welfare Benefits”) had
Executive remained an employee of Employer following the Effective Date
(Executive shall be responsible for the portion of health benefit premiums that
would be paid by an employee of Employer receiving comparable benefits) through
the earlier of (A) August 31, 2009 and (B) the date Executive is entitled to
receive health benefits with a new employer; provided, however, the health
benefit premiums that Employer shall be required to pay for such benefits shall
not exceed the amounts that Employer would have been required to pay had
Executive remained an employee of Employer following the Effective Date
(Executive shall be responsible for the portion of health benefit premiums that
would be paid by an employee of Employer receiving comparable
benefits). If Executive chooses to continue his health benefits under
COBRA after the earlier of (A) August 31, 2009 and (B) the date Executive is
entitled to receive health benefits with a new employer, Executive will be
responsible for the payment of such benefits for the remainder of the period
required under COBRA. Executive agrees that the qualifying event for
electing to continue Executive’s health benefits under COBRA is the Effective
Date.
(4) Employer’s
obligation to pay Executive the payments and benefits and to provide and pay for
these outplacement services set forth in this Section 2, and
Executive’s right to receive and retain the same, shall be subject to
Executive’s adherence to the terms and conditions of this
Agreement.
(b) No Benefits. After
the Effective Date, Executive shall not be entitled to continue Executive’s
participation in any other benefits generally available to employees of
Employer, including 401(k) plan, cash incentive or bonus plans, stock-based
incentive plans or the like, except as is generally allowable pursuant to the
explicit terms and conditions of such programs or plans or as otherwise
expressly set forth in this Agreement.
(c) General. All
Separation Payments 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. Except as provided in this Agreement, no payment,
compensation, leave time, insurance or other benefits, will be furnished or paid
to Executive.
3. Treatment of Outstanding Equity
Awards. Executive has outstanding stock options, restricted
stock and restricted stock units. For purposes of these equity
awards, Employer will deem Executive’s resignation from his positions with
Employer and its subsidiaries as a termination by Employer without cause for
purposes of the award agreements and Executive’s rights and benefits at and
after Executive’s termination of employment with Employer will be as set forth
in the respective award agreements for each of these outstanding equity awards,
except as modified with the approval of Executive to comply with Section 409A of
the Internal Revenue Code of 1986, as amended.
4. Prior Agreements Superseded;
Representations and Releases.
(a) Prior Agreements, Practices, Policies
and Procedures Regarding Severance or Separation Benefits
Superseded. In consideration for the Separation Payments to be
paid or received by Executive under this Agreement, Executive agrees that any
agreement between Employer and Executive with respect to severance or separation
payments is terminated as of the Effective Date and any such agreement or any
other severance practice, policy or procedure of Employer 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 any such agreement, practice, policy or
procedure. Notwithstanding anything contained herein to the contrary,
this Agreement shall not supersede or affect any outstanding equity award
agreements between Executive and Employer for stock options, restricted stock
and restricted stock units.
(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
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; (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 to consider this Agreement and consult with his
attorneys and advisors concerning this Agreement before signing it; 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’s Chief
Executive Officer, 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.
(1)
Executive hereby releases, gives up and waives any and all known and unknown
rights, causes of action, lawsuits and claims for liability Executive may now or
in the future have against any of the Employer Parties (defined below) in any
way arising out of, based upon or relating to (i) Executive’s employment with
Employer or any of its subsidiaries, or the termination of or resignation from
such employment, (ii) any promise, policy, agreement, action or conduct of any
of the Employer Parties to date, or (iii) any fact occurring prior to this
date. Executive acknowledges that this means that, among other
claims, he is releasing the Employer Parties from and may not bring claims
against any of them under (i) Title VII of the Civil Rights Act of
1964 or Sections 1981 and 1983 of the Civil Rights Act of 1866, which prohibit
discrimination based on race, color, national origin, ancestry, religion, or
sex; (ii) the Age Discrimination in Employment Act, which prohibits
discrimination based on age; (iii) the Equal Pay Act, which prohibits paying men
and women unequal pay for equal work; (iv) the Americans with Disabilities Act
and Sections 503 and 504 of the Rehabilitation Act of 1973, which prohibit
discrimination based on disability; (v) the WARN Act, which requires that
advance notice be given of certain workforce reductions; (vi) the Employee
Retirement Income Security Act, which among other things, protects employee
benefits; (vii) the Family and Medical Leave Act of 1993, which
requires employers to provide leaves of absence under certain circumstances;
(viii) the Xxxxxxxx-Xxxxx Act of 2002, which, among other things, provides
“whistleblower” protection; (ix) the National Labor Relations Act, (x) the
Missouri Human Rights Act; (xi) the Missouri Service Letter Statute; (xii) any
applicable federal, state or local law prohibiting any form
of discrimination or retaliation; (xiii) any law prohibiting
retaliation based on exercise by Executive of rights under any law, providing
“whistleblower” protection, providing workers’ compensation benefits, protecting
union activity, mandating leaves of absence, prohibiting discrimination based on
veteran status or military service, restricting an employer’s right to terminate
employees or otherwise regulating employment, (xiv) any law or decision
enforcing express or implied employment contracts, requiring an employer to deal
with employees fairly or in good faith, providing recourse for alleged wrongful
discharge, tort, physical or personal injury, emotional distress, fraud,
negligent misrepresentation, defamation, and similar or related claims, and any
other law or decision relating to salary, commission, compensation, benefits,
and other matters. Except to the extent provided otherwise elsewhere
in this Agreement, Executive further hereby releases, gives up and waives any
and all rights and claims he had, has or will have to any bonus or payment under
any bonus or incentive plan or program of Employer, including, among others,
Employer’s 2008 Annual Incentive Plan and Employer’s Long-Term Incentive Plan
for any plan periods not yet completed, and also hereby surrenders to Employer,
as of the Effective Date, any restricted stock and restricted stock units
subject to forfeiture upon termination of Executive’s employment at the
Effective Date and stock options that have not yet become exercisable at the
Effective Date. Executive specifically represents that he has not
been treated adversely on account of age or gender, or in retaliation for
exercising any legal rights or reporting any alleged violation of law, nor has
he otherwise been treated wrongfully in connection with his employment with
Employer or his separation from employment and that he has no claim under the
Age Discrimination in Employment Act, or any other federal, state or local law,
decision, order or regulation concerning discrimination or
retaliation. Except to the extent provided otherwise elsewhere in
this Agreement, Executive is not eligible for severance under any agreement,
severance plan, program, policy or arrangement of Employer or any of its
subsidiaries or affiliates and Executive specifically waives any right he may
have to receive benefits under any such agreement, severance plan, program,
policy or arrangement. Executive acknowledges that Employer relied on
the representations and promises in this Agreement in agreeing to pay Executive
the amounts described in Section 2 and to
continue the equity awards in accordance with their respective award agreements
as described in Section
3. Executive understands that he is releasing claims for
events that have occurred prior to his signing this Agreement that he may not
know about. Notwithstanding anything contained herein to the
contrary, this release does not include (and Executive does not release) claims
arising after the date Executive signs this Agreement, claims for vested
benefits under any Employer benefit plan based upon Executive’s service until
and ending on the Effective Date, any claim for breach of this Agreement or any
equity award agreement, or any pending claims for workers compensation that have
already been filed or for on-the-job injuries that have already been
reported. In addition, Executive understands that by signing
this Agreement Executive waives and gives up, among other claims, the right to
file a lawsuit seeking monetary damages from the Employer Parties for
discrimination claims, but that this Agreement and release does not prohibit
Executive from making an administrative complaint of employment discrimination
against any of the Employer Parties with a governing federal, state or local
agency.
For purposes of this Agreement, the
term “Employer Parties” means (1) Employer and any of its present or former
direct or indirect subsidiaries, affiliates, and any joint venture or other
entity in which Employer or any such entity has any ownership interest, (2) any
employee benefit plans or trusts sponsored, established or maintained by
Employer or any other entity described in (1) above, (3) the present and former
directors, officers, employees, agents, administrators, trustees and fiduciaries
of each entity described in (1) or (2) above, and (4) the respective insurers,
successors and assigns of each person or entity described in (1), (2) or (3)
above.
(2)
Employer hereby releases, gives up and waives any and all known and unknown
rights, causes of action, lawsuits and claims for liability Employer may now or
in the future have against Executive in any way arising out of, based upon or
relating to (i) Executive’s employment with Employer or any of its subsidiaries,
or the termination of or resignation from such employment, (ii) any promise,
policy, agreement, action or conduct of Executive to the Effective Date, or
(iii) any fact occurring on or prior to the Effective Date, except for rights,
claims, causes of action and claims for liability against Executive in any way
based on any criminal conduct by Executive, any knowing or intentional violation
of law by Executive, or any fraud or breach of fiduciary duty by Executive
(“Retained
Claims”). Notwithstanding anything contained herein to the
contrary, this release does not include (and Employer does not release) any
Retained Claims, any claim for breach of this Agreement or any confidentiality,
non-solicitation or non-competition agreement signed by Executive, or any claims
arising after the Effective Date.
(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 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 either Employer or
Executive. Executive agrees that neither this Agreement nor
performance hereunder constitutes or should be construed as an admission by
Employer or any of the Employer Parties of any fault, liability, wrongdoing, or
violation of any Employer policy, any federal, state, foreign or local law or
regulation, common law, or any breach of any contract or any other wrongdoing of
any type, all of which are expressly denied. Likewise, Employer agrees that
neither this Agreement nor performance hereunder constitutes or should be
construed as an admission by Executive of any fault, liability, wrongdoing, or
violation of any Employer policy, any federal, state, foreign or local law or
regulation, common law, or any breach of any contract or any other wrongdoing of
any type, all of which are expressly denied by Executive.
5. Covenant Not To Xxx;
Indemnification.
Executive and Employer each agree 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 of the Employer
Parties or Executive (as the case may be), in any such case asserting any claim
released by Executive or Employer (as the case may be) by Section 4(c)(1) and
(2) of this Agreement. If Employer or Executive enters into
any such suit, action or other proceeding in violation of this Section 5, the party
who does so shall (i) indemnify, defend and hold the other (which, in the
case of Employer shall include all the Employer 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 such person in any way relating to, arising out of,
connected with or resulting from such actions, including any of the matters
released hereunder and (ii) (in the case of Executive) immediately return
the Separation Payments to Employer.
6. Restrictive
Covenants.
(a) Confidentiality.
Executive acknowledges that, as an executive of Employer, he has had
access to confidential, proprietary and trade secret information of
Employer. In addition, Executive acknowledges the competitive nature
of Employer’s business and agrees and reaffirms that any information that is not
public (by lawful means) or otherwise readily accessible by the public through
lawful means acquired by Executive regarding Employer’s business, its finances,
costs, pricing, contracts, customers, prospects, plans, products, manufacturing
methods, technology, legal proceedings, personnel, directors and officers
(whether or not such information is marked confidential) shall be considered
Employer’s confidential information. In furtherance and not
limitation of any prior agreements, to the extent that any of the following is
not public (by lawful means) or otherwise readily accessible by the public
through lawful means 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 trade secrets, 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). Executive agrees to immediately return to Employer all
Employer property and any information (including any copies thereof, electronic
or otherwise) that Executive has received, prepared or helped to prepare during
the course of Executive’s employment with Employer. Executive agrees
to return the Employer-owned Blackberry and computer that were provided by
Employer for his use at the earlier of December 31, 2008 or upon the request of
Employer.
(b) Non-Solicitation. In
consideration of the Separation Payments, and in furtherance and not limitation
of any prior agreement between Executive and Employer with respect to
non-solicitation matters, Executive acknowledges and agrees that, during the
period from the Effective Date through and ending August 31, 2010: (1) Executive
will not directly or indirectly recruit any employee, sales representative 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 Employer or any of its subsidiaries or
affiliates to engage in a business activity in competition with Employer or any
of its subsidiaries or affiliates; and (2) 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) Non-Compete. In
consideration of the Separation Payments, and in furtherance and not limitation
of any prior agreement between Executive and Employer with respect to
non-compete matters, Executive agrees that during the period from the Effective
Date through and ending August 31, 2010, Executive will not act as a consultant,
advisor, independent contractor, officer, manager, employee, principal, agent,
director or trustee of, or provide any services or advice to, any corporation,
partnership, limited liability company, association or other entity that was or
is engaged in a Competing Business anywhere in the world, engage in a Competing
Business anywhere in the world, or directly or indirectly own more than one
percent (1%) of the outstanding equity of any such entity which is engaged in a
Competing Business anywhere in the world. For purposes of this Section 6(c), a
“Competing Business” is
any business that competes with (or offers or markets any products or services
of a type marketed by or competitive with) any products or services marketed by
Employer or any of its subsidiaries or affiliates. Executive
acknowledges that Employer and its subsidiaries and affiliates do business
throughout the world.
(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 or threatens to breach 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. Further, Executive waives any requirement for
Employer to post a bond in connection with any action relating to this
Agreement.
(e) Existing
Obligations. Executive agrees to remain bound by and to comply
with, and reaffirms Executive’s obligations under, any agreement or policy
relating to confidential information, invention, non-solicitation,
non-competition or similar matters to which Executive is now subject,
notwithstanding the reasons why Executive’s employment terminated or any conduct
occurring prior to the Effective Date. The covenants and agreements set out in
this Section 6
above are in addition to, and do not in any way cancel or supersede, any of such
obligations or agreements.
(f) Survival. The
provisions of this Section 6 shall
survive any termination of this Agreement.
(g) Reformation. To the
extent that any covenant set forth in this Section 6 shall be
determined to be invalid or unenforceable in any respect or to any extent, the
covenant shall not be rendered invalid, but instead shall be automatically
amended for such lesser term or to such lesser extent, or in such other degree,
as may grant Employer the maximum protection and restrictions on Executive’s
activities permitted by applicable law in such circumstances.
7. Non-Disparagement;
No Re-Employment; Independent Contractor Agreement.
(a) Non-Disparagement.
(1) Executive
agrees to conduct himself in a professional and positive manner in all of his
dealings, communications and contacts concerning Employer, his employment or his
separation from employment. Executive agrees not to denigrate,
disparage, or make any derogatory or negative statements about Employer or its
subsidiaries or affiliates or any of their respective present or former
directors, officers, or employees. In particular, Executive agrees
not to make any derogatory or negative statements about Employer (including any
subsidiaries or affiliates), its business plans, policies and practices, or
about any of its present or former officers, directors, or employees to
customers, competitors, suppliers, employees, former employees, members of the
public (including but not limited to in any internet publication, posting,
message board or weblog), members of the media, or any other person, nor shall
Executive take any action to harm or adversely affect the reputation or goodwill
of Employer. Nothing in this Section 7(a)(1) shall
prevent Executive from giving truthful testimony or information to law
enforcement entities, administrative agencies or courts or in any other legal
proceedings as required by law, including but not limited to assisting in the
prosecution of claims not released by this Agreement or assisting in an
investigation or proceeding brought by any governmental or regulatory
body.
(2) Employer
will direct its directors, officers and upper management to conduct themselves
in a professional and positive manner in all of their dealings, communications
and contacts concerning Executive, his employment, and his separation from
employment, and not denigrate, disparage, or make any derogatory or negative
statements about Executive to others outside Employer, or instruct anyone else
to do so. In particular, the directors, officers and upper management
will be directed not to make any derogatory or negative statements about
Executive, or his performance, to customers, competitors, suppliers, former
employees, members of the public (including but not limited to in any internet
publication, posting, message board or weblog), members of the media, or any
other person outside Employer. Nothing in this paragraph shall prevent Employer
representatives from giving truthful testimony or information to law enforcement
entities, administrative agencies or courts or in any other legal proceedings as
required by law, including, but not limited to, assisting in an investigation or
proceeding brought by any governmental or regulatory body or official related to
alleged violations of any law relating to fraud or any rule or regulation of the
Securities and Exchange Commission, or from making any truthful statements or
comments in connection with any securities filings or in order to comply with
any obligations under federal, state or local laws (including without
limitation, any federal securities laws).
(b) No
Re-Employment. Executive will never apply
for or seek employment with Employer or any of its subsidiaries or affiliates,
or be employed by any such entity, and agrees that Employer or such subsidiary
or affiliate may refuse to employ him (or, if he has already been employed,
dismiss him following discovery of that fact) without liability.
(c) Consulting
Services. Following the Effective Date through December 31,
2008, Executive shall provide such consulting services as may be requested from
time to time by Employer. In connection with such engagement,
Employer and Executive shall enter into an Independent Contractor Agreement in
the form attached to this Agreement as Exhibit D, pursuant
to which Executive shall provide consulting services as approved by Employer’s
Chief Executive Officer. For such consulting services,
Executive shall be paid a monthly retainer of $30,000. Executive and
Employer agree that the level of anticipated services as an independent
contractor will not exceed twenty percent (20%) of the average level of bona
fide services performed over the 36-month period immediately preceding the
Effective Date.
8. Legal
Proceedings. Executive agrees to cooperate with
Employer or any of its subsidiaries or affiliates and their legal counsel, and
to furnish any and all complete and truthful information, testimony or
affidavits, in connection with any matter that arose during his employment with
Employer, or in connection with any litigation, governmental proceeding or
investigation, arbitration or claim, that in any way relates to the business or
operations of Employer or of any of its subsidiaries or affiliates, or of which
Executive may have any knowledge or involvement. Executive will make his best
efforts to consult with and provide information to Employer or any of its
subsidiaries or affiliates and their legal counsel concerning all such matters,
and appear as and when requested to provide any such information, assistance or
testimony on reasonable notice. The parties will make their best efforts to have
such cooperation performed at reasonable times and places and in a manner as not
to unreasonably interfere with any other employment or other business activity
in which Executive may then be engaged. Nothing in this Agreement
shall be construed or interpreted as requiring Executive to provide any
testimony, sworn statement or declaration that is not complete and truthful. If
Employer or any of its subsidiaries or affiliates requires Executive to travel
outside the metropolitan area in the United States where he then resides to
provide any testimony or otherwise provide any such assistance, then Employer
agrees to reimburse Executive for any reasonable, customary and necessary travel
and lodging expenses incurred by him to do so provided Executive submits all
documentation required under Employer’s reimbursement policies and as otherwise
may be required to satisfy any requirements under applicable tax laws for
Employer to deduct those expenses. Nothing in this Agreement shall prevent
Executive from giving truthful testimony or information to law enforcement
entities, administrative agencies or courts or in any other legal proceedings as
required by law, including, but not limited to, assisting in an investigation or
proceeding brought by any governmental or regulatory body or official related to
alleged violations of any law relating to fraud or any rule or regulation of the
Securities and Exchange Commission.
9. 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 directorships with Employer and
its subsidiaries and affiliates, the Separation Payments and the treatment of
the outstanding equity awards currently held by Executive 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, non-solicitation
agreement, non-compete agreement, invention assignment, equity award 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 and is freely assignable by Employer. 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 the other party hereto. Each subsidiary or
affiliate of Employer (and their predecessors, successors and assigns) shall be
a third-party beneficiary of this Agreement, as if such subsidiary or 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. This
Agreement is deemed to have been entered into and accepted in the State of
Missouri, and 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. Each of Employer and Executive hereby agree that all claims,
actions, suits and proceedings between the parties hereto relating to this
Agreement may be filed, tried and litigated in the Circuit Court of Saint Louis
County, Missouri or (if federal jurisdiction exists) the United States District
Court for the Eastern District of Missouri. In connection with the
foregoing, the parties hereto consent to the jurisdiction and venue of such
courts and expressly waive any claims or defenses of lack of personal
jurisdiction of or proper venue by such courts, and any claim that either such
forum is not a convenient or the most convenient forum. In the event
of a breach of this Agreement, the breaching party agrees to pay all costs of
enforcement and collection of any and all remedies and damages, including
reasonable attorneys’ fees.
(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). 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 judgment 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 the Separation Payments
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. A facsimile signature is as good as an
original.
10. Execution and
Delivery. This Agreement was presented to Executive on
September 2, 2008. Executive has been advised to take this Agreement
home, read it, and carefully consider all of its provisions before signing it
and consult with an attorney or attorneys of his choice.
[Remainder
of page intentionally left blank]
IN WITNESS WHEREOF, the
parties have executed this Agreement on the day, month and year written
below.
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EXECUTIVE:
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EMPLOYER:
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INSITUFORM
TECHNOLOGIES, INC.
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/s/ Xxxxxx X.
Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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By:
/s/ J. Xxxxxx
Xxxxxxx
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Name:
J. Xxxxxx Xxxxxxx
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Title: President
and Chief Executive Officer
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| Date: September 5, 2008 | Date: September 5, 2008 |
