EX-10.1 2 c87115exv10w1.txt EXECUTIVE SEPARATION AGREEMENT EXHIBIT 10.1 EXECUTIVE SEPARATION AGREEMENT AND RELEASE THIS EXECUTIVE SEPARATION AGREEMENT AND RELEASE (the "AGREEMENT") is made and entered into effective as of June 18, 2004 (the "EFFECTIVE DATE") by and between INSITUFORM TECHNOLOGIES, INC., a Delaware corporation ("EMPLOYER"), and Thomas A.A. Cook ("EXECUTIVE"). PRELIMINARY STATEMENT A. Executive's employment with Employer terminated as of the Effective Date. B. Without any admission as to fault, liability or wrongdoing, and in order to provide for a smooth transition of the general counsel and corporate secretary functions of Employer and to avoid the time, distractions and resource expenditures potentially associated with an involuntary departure, Employer and Executive desire to resolve all matters relating to or arising out of Executive's employment by Employer and Executive's termination of employment with Employer on the terms described below. C. Executive is being provided a period of seven (7) days from the Effective Date (which will be June 25, 2004, to consider the meaning and effect of this Agreement prior to finally accepting this Agreement. 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 AS EXECUTIVE OFFICER OF EMPLOYER AND ALL AFFILIATES; EMPLOYMENT TERMINATION. Executive voluntarily resigns all of his executive officer and director positions and offices with Employer and any of its subsidiaries and plans as of the Effective Date. These resignations are effected by means of a separate resignation letter in the form attached to this Agreement as Exhibit A, signed and delivered by Executive and accepted by Employer. The employment of Executive by Employer, in any capacity whatsoever, ceases as of the Effective Date. Executive's status as an executive officer of Employer, and the accompanying obligations imposed upon executive officers of public companies by applicable law, regulation, contract and internal company policy also cease as of the Effective Date. Any and all right or authority of Executive to act as an agent of Employer, in any manner whatsoever, terminates on the Effective Date. Employer will pay Executive as soon as practicable after the Effective Date for all accrued but unpaid compensation due Executive as well as any accrued but unused vacation time as of the Effective Date. 2. REVOCATION OF ACCEPTANCE. Executive has the right to consult with an attorney or attorneys of his choice concerning this Agreement and has been advised in writing of his right to do so. Executive has until June 25, 2004 (seven (7) days from the Effective Date) to revoke his acceptance of this Agreement. For Executive to revoke his acceptance of this Agreement, he must notify the President and Chief Executive Officer, through written notice delivered to the President and Chief Executive Officer prior to the close of business on June 25, 2004, of his decision to revoke his acceptance. If Executive revokes his acceptance prior to the close of business on June 25, 2004, 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. In the event of a timely revocation of acceptance of this Agreement, the resignation of Executive from his positions as an executive officer of Employer and its subsidiaries and affiliates as contemplated in Section 1 will not be revoked and will remain in full force and effect. Executive Initials: TAAC 1 3. SEPARATION PAYMENTS AND BENEFITS. In consideration for the resignation of Executive from all executive officer positions with Employer and its subsidiaries and affiliates and the other representations, warranties, covenants and agreements made by Executive and contained in this Agreement, Employer shall pay the following amounts and provide the following benefits (the "SEPARATION PAYMENTS AND BENEFITS") under the terms and conditions stated in this Agreement: (a) REGULAR CASH SEVERANCE PAYMENTS. Employer agrees to pay Executive a one-time lump-sum payment on or before the 30th day after the Effective Date equal to One Hundred and Thirty Thousand Dollars ($130,000.00) in cash. (b) CONTINUATION OF HEALTH, DENTAL, LIFE AND DISABILITY BENEFITS AND AUTOMOBILE ALLOWANCE. Employer agrees to continue to provide Executive with health, dental, life and disability benefits equivalent to Executive's current benefits for Executive and his eligible family members (the "WELFARE BENEFITS") through the last day of June 2004. If Executive chooses to continue his health and medical benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA") after June 30, 2004, Executive will be responsible for the payment of such benefits for the remainder of the period required under COBRA. Unless otherwise modified in a separate letter on continued employment of Executive by Employer, Executive agrees that the qualifying event for electing to continue Executive's health and medical benefits under COBRA is the Effective Date. After the Effective Date, Executive shall not be entitled to continue his participation in any other benefits generally available to employees of Employer, including any car allowance, 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. (c) EXERCISABILITY OF STOCK OPTIONS; UNVESTED STOCK AWARDS FORFEITED. Any vested options that Executive holds unexercised on the Effective Date will remain exercisable until [JULY 18, 2004], but any options or other stock awards that are unvested on the Effective Date will be cancelled and forfeited by Executive to Employer. Executive acknowledges and agrees that he will remain subject to Employer's insider trading policy, which includes compliance with the blackout period for the quarter ending June 30, 2004, except that transactions in the stock of Employer that Executive commenced on or prior to the Effective Date are specifically not subject to such period. (d) GENERAL. All Separation Payments and Benefits 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. Further, the Separation Payments and Benefits represent all of the compensation (including vacation and severance pay) to which Executive is, or may be, entitled by virtue of Executive's employment and separation from employment with Employer. This Section 3, however, shall have no force or effect if Executive revokes Executive's acceptance of this Agreement pursuant to Section 2 hereof. 4. PRIOR AGREEMENTS SUPERSEDED; REPRESENTATIONS AND RELEASES. (a) PRIOR AGREEMENTS, PRACTICES, POLICIES AND PROCEDURES REGARDING SEVERANCE OR SEPARATION BENEFITS SUPERSEDED. In consideration for all of the Severance Payments and Benefits to be paid or received by Executive under this Agreement and subject to Section 2, Executive agrees that any other agreement between Employer and Executive with respect to severance or separation payments is terminated as of the Effective Date of this Agreement 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. Executive Initials: TAAC 2 (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 and was not provided in connection with any exit incentive or other employment termination program offered to any group or class of employees; (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 (and at least seven (7) days) to consider this Agreement and consult with his attorneys and advisors concerning this Agreement; 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, either 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. Executive hereby releases, gives up and waives any and all rights, causes of action, lawsuits and claims for liability Executive may now or in the future have against Employer, and its shareholders, directors, officers, employees, agents, affiliates, subsidiaries, Employer-sponsored benefit plans and associated trusts (including administrators, trustees and other fiduciaries thereof) and predecessors in interest, together with their respective shareholders, directors, officers, employees, insurers and agents (collectively, "RELEASED PARTIES") in connection with, relating to or arising out of or based upon Executive's employment with Employer (or any Released Parties) or out of the termination of Executive's employment with Employer (or any Released Parties), or any promise, agreement, act, conduct or decision of any of the Released Parties to date. Further, EXECUTIVE HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES RELEASED PARTIES of and from any and all manner of claims, actions, charges, complaints, causes of action, suits, judgments, demands, injuries, damages and agreements whatsoever, whether in law or in equity, whether based on contract, statute, tort or strict liability, any alleged rights or claims arising under the National Labor Relations Act; Title VII of the Civil Rights Act of 1964, as amended; Sections 1981 through 1988 of Title 42 of the United States Code, as amended; the Employee Retirement Income Security Act of 1974, as amended (except for claims under Employer's 401(k) Profit Sharing Plan); the Immigration Reform Control Act; the Americans with Disabilities Act of 1990, as amended; the Age Discrimination in Employment Act of 1967, as amended; the Rehabilitation Act of 1973, as amended; the Occupational Safety and Health Act; the Family and Medical Leave Act; the Missouri Human Rights Act; the Missouri Workers' Compensation Law; the Missouri Service Letter Statute; other alleged age discrimination or other employment discrimination, breach of express or implied contract, breach of the covenant of good faith and fair dealing, wrongful discharge, or any other alleged violation of federal, state, or local statutory or common law, whether or not now known or contemplated, which now exist or may hereafter arise from any matter, fact, circumstance, happening or thing whatsoever occurring or failing to occur in connection with, relating to or arising out of Executive's employment with Employer (or any Released Parties) or out of the termination of Executive's employment with Employer (or any Released Parties). This is not, however, a release of any claims arising after this date or any right to vested benefits due Executive under Employer's 401(k) plan or group health or dental insurance plans based plans based upon service to and ending as of the Effective Date. Executive Initials: TAAC 3 (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 as against Executive 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 Executive. Executive agrees that neither this Agreement nor performance hereunder constitutes or should be construed as an admission by Employer or any of the Released Parties of any violation of any Employer policy, federal, state, foreign or local law, regulation, common law, or any breach of any contract or any other wrongdoing of any type, all of which are expressly denied. 5. COVENANT NOT TO SUE; INDEMNIFICATION. Executive agrees 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 Released Party, in any such case asserting any claim released by Executive by Section 4 of this Agreement, other than an action against Employer to enforce Executive's rights set forth in this Agreement. If Executive enters into any such suit, action or other proceeding in violation of this Section 5, Executive shall (i) indemnify, defend and hold the Released 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 Released Party in any way relating to, arising out of, connected with or resulting from such actions, including any of the matters released hereunder and (ii) immediately return the Separation Payments and Benefits (or the value thereof). Employer shall indemnify Executive to the full extent permitted by Section 145 of the Delaware General Corporation Law, as amended from time to time, in connection with any action, suit or proceeding arising by reason of any acts taken or omissions to act occurring while Executive was an officer and director of Employer or any of its subsidiaries. 6. CONFIDENTIALITY; NONSOLICITATION AND NONCOMPETITION. (a) CONFIDENTIALITY. Executive acknowledges that, as General Counsel of Employer, he served as legal counsel for Employer and has had access to legally privileged attorney-client communications. Executive agrees that he will maintain Employer's privilege on all matters in accordance with his duties, responsibilities and obligations as a licensed attorney and a member of the Bar of the State of Missouri. In addition, Executive acknowledges the competitive nature of the Employer's business and agrees and reaffirms that any information 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 the Employer's confidential information. In furtherance and not limitation of any prior agreements 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 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). Furthermore, Executive agrees to immediately return to Employer all Employer property and any information (including any copies thereof) which Executive has received, prepared or helped to prepare during the course of Executive's employment with Employer. (b) NONSOLICITATION. In consideration of the Separation Payments and Benefits, and in furtherance and not limitation of any prior agreement between Executive and Employer with respect to Executive Initials: TAAC 4 nonsolicitation matters, Executive acknowledges and agrees that, from the Effective Date through June 18, 2005, Executive will not, directly or indirectly recruit any employee, sales representative, consultant 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 to engage in a business activity in competition with Employer or any of its subsidiaries or affiliates. Executive acknowledges and agrees that, from the Effective Date through June 18, 2005, 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) NONCOMPETE PERIOD. In consideration of the Separation Payments and Benefits, and in furtherance and not limitation of any prior agreement between Executive and Employer with respect to noncompete matters, Executive agrees that from the Effective Date through June 18, 2005, Executive will not act as a consultant, advisor, independent contractor, officer, manager, employee, principal, agent, director or trustee, or provide any services or advice to, of any corporation, partnership, limited liability company, association or other entity, or directly or indirectly own more than one percent (1%) of the outstanding equity of any such entity which is engaged in the business of rehabilitating, lining, relining, coating, constructing or reconstructing pipelines, sewers, conduits or passageways anywhere in the world; or otherwise engage in such business. This does not, however, preclude Executive from rendering legal services only to any such entity or from working for any such entity in the capacity of inside legal counsel. Executive specifically agrees and acknowledges that Employer does business and will continue to seek and do business in the United States and internationally so the foregoing geographic scope is reasonable in light of current and presently anticipated operations of Employer. (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 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. Executive hereby waives the claim or defense that Employer has an adequate remedy at law and Executive shall not claim that an adequate remedy at law exists. Further, Executive waives any requirement for Employer to post a bond in connection with any action relating to this Agreement. (e) SURVIVAL. The provisions of this Section 6 shall survive any termination of this Agreement. 7. NONDISCLOSURE; NO DISPARAGING REMARKS; NO RE-APPLICATION. Executive agrees that the terms of this Agreement will not be discussed by Executive with, or otherwise disclosed by Executive to, any person other than Executive's attorney, including any present or former employee of Employer, its shareholders, affiliates, subsidiaries or predecessors in interest. However, the Executive will be entitled to present a copy of this Agreement, redacted to delete the financial terms, to a prospective employer with whom he has applied for employment. Executive agrees that Executive will not disparage Employer or its directors, officers, employees, agents, consultants, products or services, or portray Employer or any of its directors, officers, employees, agents, consultants, products or services in a negative light. Executive agrees not to re-apply for any employment position with Employer without expressly and conspicuously listing this Executive Initials: TAAC 5 Agreement on any application for such re-employment. Further, Executive agrees that Employer shall not be required to give any consideration to such re-application. 8. 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 Payments and Benefits 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, noncompete agreement, invention assignment, stock option 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, Executive Initials: TAAC 6 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. 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. (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 judgement 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 any consideration paid 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 IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. EXECUTIVE: EMPLOYER: INSITUFORM TECHNOLOGIES, INC., /s/ Thomas A. A. Cook ---------------------------- Print Name: Thomas A.A. Cook By: /s/ Thomas S. Rooney, Jr. SSN: ---------------------------------------- Address: Name: Thomas S. Rooney, Jr. Title: President and Chief Executive Officer Executive Initials: TAAC 7 EXHIBIT A FORM OF RESIGNATION LETTER June 18, 2004 Insituform Technologies, Inc. 702 Spirit 40 Park Drive Chesterfield, Missouri 63005 Attention: Thomas S. Rooney, Jr. President and Chief Executive Officer Dear Mr. Rooney: Effective immediately, I hereby resign as Vice President, General Counsel and Secretary of Insituform Technologies, Inc. (the "Company"). I also resign, effective immediately, from all other offices and directorships (or similar positions) of the Company's subsidiaries and affiliates. In addition, I am terminating my employment with the Company and its subsidiaries and affiliates effective immediately. I understand and specifically agree that if I choose to revoke my acceptance of that certain Executive Separation Agreement and Release (the "Separation Agreement") pursuant to the terms of Section 2 of that agreement, my resignation from my offices and directorships and the termination of my employment with the Company, its subsidiaries and affiliates will not be revoked and will remain in full force and effect. In the event of such a revocation of the Separation Agreement pursuant to the Section 2 thereof, the Company agrees to treat my termination of employment as a termination of employment by Employer without cause for all purposes. Very truly yours, Thomas A.A. Cook APPROVED AND ACCEPTED: ------------------------------------- Thomas S. Rooney, Jr. President and Chief Executive Officer Executive Initials: TAAC 8