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 Thomas E. Vossman (“
Executive ”), is entered into and effective as of this
5 th
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.
(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 Sarbanes-Oxley 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
