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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 S.
Rooney, Jr. (“ Executive ”), is
entered into and effective as of this 13 th 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
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 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,
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