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. Xxxxxx, Xx.
(“Executive”), is entered into and effective as of this 13th
day of August,
2007.
Preliminary
Statement
A. Executive
has resigned his officer and director positions with Employer and its
subsidiaries, with such resignation and the termination of Executive from such
officer and director positions effective as of August 13, 2007 (the
“Resignation Effective Date”).
B. Executive
will continue to be employed as a non-officer employee of Employer through
the
close of business on August 31, 2007 (the “Employment Termination
Date”) on the terms described below, and has voluntarily and
irrevocably resigned his employment with Employer and its subsidiaries as of
the
Employment Termination Date, at which time and upon which date, Executive’s
employment with Employer and its subsidiaries will terminate.
C. 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.
D. 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 and any of its
subsidiaries and from all positions with any employee benefit plans sponsored
by
Employer or any of its subsidiaries on the Resignation Effective
Date. These resignations were effected by means of a 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 on the Resignation 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 Employment Termination Date, and will be
employed by Employer during the period from the date of this Agreement until
the
Employment Termination Date on the terms described below. The employment of
Executive by Employer, in any capacity whatsoever, will terminate and cease
as
of the Employment Termination Date, although any and all right or authority
of
Executive to act as an agent of Employer, in any manner whatsoever, terminated
on the Resignation Effective Date. Executive shall be on an unpaid
leave of absence during the period beginning with the Resignation Effective
Date
and ending on the Employment Termination Date (the “Leave Period”), and during
such Leave Period Executive shall not be responsible for any day-to-day duties
with Employer, have any access to Employer’s information systems, files or other
confidential records or information, or act for or on behalf of the
Employer. During the Leave Period, Executive shall not be authorized
to enter, or be present at, any facility owned or leased by
Employer. Executive will be eligible during the Leave Period to
continue participation in all employee benefit plans and programs of Employer
in
which Executive participated as of his Resignation Effective Date, but Executive
will not be eligible to receive any salary, compensation, or other cash payments
(other than those to be received pursuant to the terms of this Agreement),
or
accrue any paid time off, for or on account of his employment during the Leave
Period.
2. Separation
Benefits. In consideration for the
representations, warranties, covenants and agreements made by Executive and
contained in this Agreement, Employer will deem Executive’s resignation from his
positions with Employer and its subsidiaries as a termination by Employer
without cause, and Employer will pay Executive an aggregate of $1,015,133 (the
Severance Payment”) payable as follows: (a) a lump-sum payment equal to $676,755
within five (5) business days after the date of this Agreement and (b) an
additional payments in the aggregate amount of $338,378 payable in equal monthly
payments over the twelve months beginning in September 2007 and ending in August
2008. The payments are subject to modification with the approval of
Executive to comply with Section 409A of the Internal Revenue Code of 1986,
as
amended.
The
Severance Payment shall be paid or
provided subject to any applicable federal, state and local income tax or other
appropriate withholding requirements.
Whether
or not Executive signs this
Agreement, he will receive wages or other compensation for all time worked
through the Resignation Effective Date, accrued vacation, and any other accrued
leave time which Executive is entitled to under applicable law, through the
Resignation 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 and directors of Employer as of this
date, to the same extent as other officers and directors of
Employer.
3. Treatment
of Outstanding Equity Awards. Executive has outstanding
stock options, restricted stock, restricted stock units and deferred 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. For purposes of these outstanding equity awards,
the Employment Termination Date will be the date that Executive’s employment
with Employer will be deemed to be terminated.
4. Prior
Agreements Superseded; Representations and
Releases.
(a) Prior
Agreements, Practices, Policies and Procedures Regarding Severance or Separation
Benefits Superseded. In consideration for the Severance
Payment to be paid or received by Executive under this Agreement and subject
to
Section 10 hereof, Executive agrees that the Employment Letter, and any
other agreement between Employer and Executive with respect to severance or
separation payments, is terminated as of the Resignation 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,
restricted stock units and deferred 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 Board of Directors, on or prior to the Resignation
Effective Date and on or prior to the Employment Termination 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 2007 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 Employment Termination Date, any restricted stock, restricted stock
units and deferred stock units subject to forfeiture upon termination of
Executive’s employment at the Employment Termination Date and stock options that
have not yet become exercisable at the Employment Termination
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 Employment Termination 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 date, or (iii) any fact
occurring prior to this date, except for rights, claims, causes of action and
claims for liability against Executive in any way based on any violation by
Executive of the Employer’s Code of Conduct, 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 this 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 Severance Payment 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). With respect to this covenant, Executive agrees to
allow a representative of Employer access to his personal computers for purposes
of removing any Employer-owned or licensed software and any Employer files
from
such computers; such access shall occur under the supervision of a
representative of Executive within seven (7) days of the date of this
Agreement. Furthermore, 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
that had been provided by Employer for his use on or before the close of
business on August 17, 2007.
(b) Non-Solicitation. In
consideration of the Severance Payment, 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 Resignation Effective Date through and ending February 13, 2009:
(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 Severance Payment, 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 Resignation Effective
Date through and ending February 13, 2009, 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) Standstill. In
consideration of the Severance Payment and in recognition of Executive’s unique
position with Employer and access to confidential information regarding
Employer, Executive agrees that from the Resignation Effective Date through
February 13, 2009, Executive will not (i) acquire, offer to acquire, or agree
to
acquire, directly or indirectly by purchase or otherwise, in excess of five
percent (5%) of the voting securities or direct or indirect right to acquire
in
excess of five (5%) of the voting securities of Employer; (ii) make or in any
way participate, directly or indirectly, in any “solicitation” of “proxies” to
vote (as such terms are used in the rules and regulations of the Securities
and
Exchange Commission), or seek to advise or influence any person or entity with
respect to the voting of any voting securities of Employer; (iii) make any
public announcement with respect to, or submit a proposal for, or offer of
(with
or without conditions) any extraordinary transaction involving Employer or
any
of its securities or assets; (iv) form, join or in any way participate in a
“group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended, in connection with any of the foregoing actions; or (v) request
that
Employer, directly or indirectly, amend or waive any provisions of this
Section 6(d).
(e) 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.
(f) 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 this 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.
(g) Survival. The
provisions of this Section 6 shall survive any termination of this
Agreement.
(h) 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;
Non-Contact; No Re-Employment.
(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) Non-Contact. During
the period from the Resignation Effective Date through February 13, 2009,
Executive shall not communicate with (including in response to any
communications initiated by others) or contact any directors, employees, or
joint venture partners of the Employer or any of its subsidiaries or affiliates
as of the date of this Agreement; provided, however, that the prohibition set
for in this Section 7(b) shall not apply to communications between Executive
and
the Company’s Chairman of the Board or General Counsel.
(c) 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.
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 Severance Payment 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 Severance Payment
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
August 10, 2007. 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. Executive
will have until 5:00 P.M., Central Daylight Time, on August 13, 2007 to
consider, sign and return this Agreement to Xxxxxx X. XxXxxx,
Xxxxxxxx Xxxxxx LLP, One XX Xxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000. If
Executive fails to return this Agreement on a timely basis, the payments
described in this Agreement and the benefits agreed upon will not be paid or
provided and this Agreement shall be null, void and of no force or effect with
respect to either Executive or Employer.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF,
the parties have executed this Agreement on the day, month and year written
below.
|
EXECUTIVE:
|
EMPLOYER:
|
|
|
INSITUFORM
TECHNOLOGIES, INC.
|
||
| /s/ Xxxxxx X. Xxxxxx, Xx. | By: /s/ Xxxxxx X. Xxxxx | |
|
Name: Xxxxxx
X. Xxxxxx, Xx.
|
Name: Xxxxxx
X.
Xxxxx
|
|
|
Title:
Chairman of the Board of Directors
|
||
| Date: August 13, 2007 | Date: August 13, 2007 |
EXHIBIT
A
FORM
OF RESIGNATION LETTER
August
13, 2007
Board
of
Directors
Insituform
Technologies, Inc.
00000
Xxxxxx Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxxx 00000-0000
Ladies
and Gentlemen:
Effective
immediately, I hereby resign as President and Chief Executive Officer and
director of Insituform Technologies, Inc. (the “Company”). I also
resign, effective immediately, from the offices and directorships (or similar
positions) of the Company’s subsidiaries and affiliates as listed on Appendix
A hereto. In addition, I am terminating my employment with the
Company effective at the close of business on August 31, 2007 and with each
of
the subsidiaries and affiliates of the Company effective
immediately.
Very
truly yours,
Xxxxxx
X.
Xxxxxx, Xx.
APPROVED
AND ACCEPTED:
__________________________________
Xxxxxx
X.
Xxxxx
Chairman
of the Board
Appendix
A
Offices
and Directorships of Xxxxxx X. Xxxxxx, Xx.
With
Insituform Technologies, Inc. Subsidiaries
|
Company
|
Jurisdiction
of Incorporation
|
Offices
and Directorships
|
|
Xxxxxxxxx,
Inc.
|
Director
|
|
|
INA
Acquisition Corp.
|
Delaware
|
Director,
President and CEO
|
|
Insituform
Technologies USA, Inc.
|
Delaware
|
Director,
President and CEO
|
|
ITI
International Services, Inc.
|
Delaware
|
Director,
President and CEO
|
|
Xxxxxx
Industries, Inc.
|
Texas
|
Director,
President and CEO
|
|
Mississippi
Textiles Corporation
|
Mississippi
|
Director
|
|
Insituform
Technologies Limited
|
Canada
|
CEO
|
EXHIBIT
B
FORM
OF RESIGNATION LETTER
August
13, 2007
Insituform
Europe SAS
00
Xxxxxxxxx xx Xxxxxxxxx
00000
Xxxxx Xxxxxxxxx
Xxxxx,
Xxxxxx
Ladies
and Gentlemen:
Effective
immediately, I hereby resign as Chairman and President of Insituform Europe
SAS.
Very
truly yours,
Xxxxxx
X.
Xxxxxx, Xx.
EXHIBIT
C
FORM
OF RESIGNATION LETTER
August
13, 2007
Insituform
(Netherlands) B.V.
Weena
340
3012
NJ
Rotterdam
The
Netherlands
Ladies
and Gentlemen:
Effective
immediately, I hereby resign as Managing Director of Insituform (Netherlands)
B.V.
Very
truly yours,
Xxxxxx
X.
Xxxxxx, Xx.
APPROVED
AND ACCEPTED:
__________________________________
Xxxxx
X.
Xxxxxx
Managing
Director
