Exhibit 10.4
MGP INGREDIENTS, INC.
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
WHEREAS , the undersigned employee has been
involuntarily terminated as a result of a restructuring;
WHEREAS , MGP Ingredients is making available to the
undersigned employee a separation benefit conditioned upon a
release of all claims by the undersigned employee; and
WHEREAS , the undersigned employee is not entitled
otherwise to any separation benefit and wishes to accept the
separation benefit described below.
The undersigned employee agrees as
follows:
1.
In exchange for the separation benefit described below,
Michael Trautschold
(“Employee”)
releases and forever discharges MGP Ingredients, Inc., its
predecessors, successors, assigns, officers, directors,
stockholders, agents, employees, and all related or subsidiary
companies or divisions (collectively referred to as
“Employer”) from all claims, demands, suits,
grievances, liabilities, or causes of action of any kind whatsoever
now existing including but not limited to those that in any way
relate to or are connected with or arise directly or indirectly out
of the employment of Employee by Employer or the termination of
that employment.
2.
The claims released and discharged by Employee as of the date of
this Agreement include, but are not limited to, claims that might
be asserted under any federal, state or local law, regulation,
ordinance, or decision concerning employment, discrimination in
employment, or termination of employment including but not limited
to:
A.
The Age
Discrimination in Employment Act of 1967, as amended, 29
U.S.C. sec. 621, et seq.;
B.
The Employee
Retirement Income Security Act of 1974, as amended, 29 U.S.C. sec.
1001, et seq.;
C.
The Kansas Acts
Against Discrimination, as amended, Kan. State. Ann. sec.
44-1001, et seq.;
D.
Title VII of
Civil Rights Act of 1964 as amended, 42 U.S.C. sec 2000e, et
seq.;
E.
Americans With
Disabilities Act, 42 U.S.C. sec. 12101, et seq.:
F.
The Civil Rights
Act of 1866, as amended, 42 U.S.C. sec. 1981;
G.
The Civil Rights
Act of 1991, 42 U.S.C. sec. 1981a; and
H.
Family and
Medical Leave Act.
The claims released and discharged
by Employee also include, but are not limited to, any claim that
Employer breached any contract, express or implied, with Employee,
made any misrepresentations to Employee, discharged Employee in
violation of public policy, or acted wrongfully in any way toward
Employee. The claims released and discharged by Employee also
include, but are not limited to, any claim relating in any manner
to personal injuries, fringe benefits, medical, dental,
hospitalization, life, disability, or other insurance benefits,
pension or other retirement benefits, and any claims for
attorney’s fees, reinstatement or rehire.
Employee further agrees not to
initiate any legal proceeding against Employer based on any fact or
circumstance occurring up to and including the date of the
execution by Employee of this Agreement.
Employee’s last date of
employment will be December 31, 2006. By this Agreement,
Employee waives any claim for reinstatement and agrees not to seek
re-employment
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with Employer at any time in the
future. Employee agrees that any attempt to obtain
re-employment following his signing this Agreement will constitute
a breach of this Agreement, and that Employer may rely upon such
breach in refusing employment, or in discharging Employee from
employment.
3.
The separation benefit shall be paid after the revocation period
for this Agreement has expired and shall be as follows:
a.
Employee shall
receive gross compensation of Forty-two Hundred Dollars and Eleven
Cents ($4,200.11) per week from January 1, 2007 until December 23,
2007. Compensation checks will be paid at net pay after
normal deductions and last weekly check will be paid on December
27, 2007. The above amounts are inclusive of accrued vacation
that was not paid prior to December 31, 2006. If Employee
does not accept this Agreement, any unpaid accrued vacation will be
paid to Employee.
b.
Health
Care. If otherwise eligible, Employee may elect continuing
healthcare coverage pursuant to COBRA. If Employee remains
eligible for COBRA, Employer will pay 85% of the family premium
through December 23, 2007. If Employee elects other
healthcare coverage, Employer will reimburse Employee for the cost
of such coverage through December 23, 2007 but not to exceed the
amount Employer would have paid had Employee elected healthcare
coverage pursuant to COBRA.
c.
Retirement.
Employee is vested in the ESOP and 401k Plans per the respective
plan documents and may take withdrawals per the respective plan
documents.
d.
Options.
Employee will be permitted to exercise options to the extent
permitted under applicable option plans and related
awards.
e.
Restricted Stock
Incentive Plan. If the Company attains the applicable
performance goals, the Employee will be permitted to receive
restricted shares on a pro rata basis as described in Attachments 1
and 2. Subject to the Company attaining performance goals, he
will be entitled to receive 30/36 of the award whose performance
period ends in 2007 and 18/36 of the award whose performance period
ends in 2008. If the Company does not attain performance
goals, then notwithstanding the provisions of Attachments 1 and 2,
he will be entitled to receive 30/84 of the award whose performance
period ends in 2007 during 2007 and 18/84 of the award whose
performance period ends in 2008 during 2008.
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f.
Outplacement. Employer
will provide, at its expense of $15,000.00, an outplacement program
through CSG Partners, Inc. / Lee Hecht Harrison in the Kansas City
area. If Employee elects before the expiration of 15 days
after the effective time of this Release to waive the outplacement
benefit, Employer will promptly pay Employee $15,000.
g.
Consulting.
Employer and Employee will enter into a consulting arrangement on
future projects in the form attached as Attachment 3 with prior
written approval from the President of MGP concerning the scope of
each project. A minimum of 400 hours will be guaranteed for
calendar year 2007 at a rate of $250 per hour. Fees will be
based on ¼ hour increments with explanations required for
invoicing as provided in the consulting agreement The
Confidentiality Obligations referred to in paragraph 5 below and in
the consulting agreement will apply to any Confidential Information
(as therein defined) or trade secrets made known to Employee during
the period that he is consulting for Employer.
h.
Long Term Care
Policy. Employee may continue his long term care policy by
paying the premium. Invoice will be sent direct to Employee
from the carrier.
i.
Withholding. All
payments hereunder will be subject to applicable
withholding.
4.
Employee is not releasing Employer from any obligation concerning
any claim for unemployment compensation Employee may make.
Employer agrees not to protest any unemployment compensation claim
if Employee’s factual information provided to support the
claim is truthful.
5.
Employee acknowledges that he continues to be bound by
confidentiality obligations as imposed by law or as referenced in
the Acknowledgement of and Agreement with Respect to Ongoing
Confidentiality Obligations, attached as Attachment 4.
6.
Employee further agrees to assist in a smooth transition, to not be
disruptive, and to cooperate with Employer concerning this change
in employment status.
7.
Employee will return on or before December 31, 2006, the laptop
computer and mobile phone and other Company property, if any, in
his possession.
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8.
Employee understands and agrees that the provisions of this Release
and the requirement that the Release be signed in order for
Employee to receive the separation benefit do not constitute an
admission of any liability to Employee and that Employer expressly
denies any such liability.
9.
Employee does not waive any rights or claims that may arise after
the date this Release is signed.
10.
Employee agrees that prior to December 31, 2007 he will not,
without the prior written consent of the Company, (a) except on
behalf of the Employer in his capacity as consultant for the
Employer, represent, approach, solicit, hire or otherwise deal
with, directly or indirectly, any person associated with a customer
of the Company with whom he had contact during the period of his
employment with Employer regarding the wheat protein, starch or
resin ingredients business (“Business”) or (b) employ
or retain or solicit for employment or retention by any other
person, any employee of the Employer. Empl
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