Andrew G. Bradley c/o Unimin Corporation
Exhibit 10.20
June 21, 2016
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c/o Unimin Corporation
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Dear Drew.
This will confirm our agreement that if you (i) voluntarily resign your employment with Unimin Corporation (“Company”) effective on or prior to July 31, 2018, and give at least three month’s advance notice of such voluntary resignation, or (ii) are involuntarily terminated by the Company at any time for any reason, the Company, in exchange for your execution and delivery to the Company of a general release substantially in the form attached hereto as Exhibit A (“Release”), shall provide the following benefits:
a) a lump-sum severance benefit equal to eighteen (18) months of your then current base salary (“Severance Benefit”). The Company agrees to provide you with three month’s advance notice of any involuntary termination, or pay you an additional three months of your then current base salary in lieu of such notice.
b) continued coverage under the Company’s medical, dental, drug and/or vision group health programs (“Group Health Coverage”), for you and your enrolled dependents, provided that you continue to pay the then current employee contribution portion(s) of the cost(s) of such Group Health Coverage. The Company agrees to provide such Group Health Coverage for the period commencing on the first day of the month following the employment termination date and ending on March 31, 2021. You understand that you will be provided only with the same Group Health Coverage offered to other Company salaried employees during the same period, which may or may not be the same as the Group Health Coverage provided on the date of this letter or on the day immediately preceding your termination of employment. It is further understood and agreed that any Group Health Coverage provided to your dependent(s) will not be provided beyond the dates(s) such dependent(s) attain the age of twenty-six (26).
If your employment is terminated during any year in which you are a participant in any annual bonus program sponsored by the Company (“ABP”), the bonus shall be calculated in the manner and at the time specified in the ABP, but the Company will pay such bonus on a pro-rata basis (i.e., an amount equal to 100% of any bonus awarded to you under the Program, multiplied by a fraction, the denominator equal to 12, and the numerator equal to the number of months worked (including any notice period or the period of payment in lieu of such notice) during the 12 month period for which the ABP is calculated. It is agreed that such pro-rata payment of any bonus will be made at the time specified in the ABP.
Unimin Corporation • ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ • ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ • Ph: 203-966-8880 • Fx: ▇▇▇-▇▇▇-▇▇▇▇ • ▇▇▇.▇▇▇▇▇▇.▇▇▇
Except as specifically set forth herein, nothing in this letter shall in any way be interpreted or construed to modify or alter the employment at will relationship which now exists between you and the Company.
| Sincerely, |
| UNIMIN CORPORATION |
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| President and Chief Executive Officer |
| Agreed and Accepted: |
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SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (“Agreement”) is entered into by and between Unimin Corporation, its parents, affiliates, subsidiaries, and divisions (“Company”), and (“Employee”). Employee enters into this Agreement on behalf of the Employee, the Employee’s spouse, heirs, successors, assigns, executors, and representatives of any kind, if any.
WHEREAS, the Employee’s employment with the Company terminated effective (“Separation Date”).
WHEREAS, the Company will provide the Employee with certain separation benefits described below in exchange for the release of any claims that the Employee had, has or may have against the Company, including any claims concerning the Employee’s employment with the Company or the Employee’s termination of employment, and the other promises contained in this Agreement.
WHEREAS, the Employee accepts these separation benefits in return for the Employee voluntarily signing a full release of any claims the Employee has, had or may have against the Company, including any claims concerning the Employee’s employment, the termination of that employment, and any claims for any benefits pursuant to that employment, and in return for the other promises contained in this Agreement.
WHEREAS, the Employee and the Company enter into this Agreement for the purpose of concluding and resolving all disputes, concerns or matters that exist or may exist between the Company and the Employee, including but not limited to the Employee’s employment with the Company, the terms and conditions of that employment, and the termination of that employment.
THEREFORE, the Company and the Employee agree as follows:
| 1. | Termination of Employment. The Employee’s employment with the Company is terminated effective the Separation Date. The Employee shall have no right to reemployment with the Company after the Separation Date although the Employee may be reemployed by mutual agreement. Employee agrees that his/her execution of this Agreement shall be an absolute defense to any claim pertaining or relating to any refusal by the Company to consider Employee for future employment. |
| 2. | No Admission. Neither the Company’s signing of this Agreement nor any actions taken by the Company in accordance with the terms of this Agreement constitute an admission by the Company that it has acted improperly or unlawfully with regard to the Employee or that it has violated any federal, state, or local law, regulation or any Company policy or procedure. |
| 3. | Separation Benefits. Subject to the Employee’s compliance with the terms of this Agreement, the Company will provide the separation benefits as set forth in that letter dated attached hereto and incorporated herein. |
| 4. | General Releases. The Employee releases and forever discharges Unimin Corporation, its subsidiaries, affiliates, and divisions, and its past, present, and future employees, directors, officers, agents, shareholders, insurers, attorneys, executors, successors, assigns, and other representatives of any kind in their capacities as such (referred to in this Agreement collectively as “Released Parties”) from any and all claims, charges, demands, liabilities, or causes of action of any kind, known or unknown, asserted or unasserted (“Claims”), that Employee ever had, has or may have, from the beginning of time through the date the Employee executes this Agreement, including, but not limited to, any claims, liabilities, or causes of action of any kind arising in connection with the Employee’s employment or termination of employment with the Company. The Employee also releases and waives any claim or right to further compensation, benefits, damages, penalties, attorneys’ fees, costs, or expenses of any kind from the Company or any of the other Released Parties, except that nothing in this release shall affect any rights the Employee may have under: (i) this Agreement; (ii) any funded retirement or 401(k) plan of the Company (including the Unimin Corporation Pension Plan), the Unimin Corporation Restoration Plan, or the Sibelco Long Term Incentive Plan; (iii) to COBRA health insurance benefits if such benefits are greater than those described above, (iv) any claim to unemployment compensation due under applicable state law. Claims that the Employee is releasing include, but are not limited to: claims for wrongful discharge; constructive discharge; breach of contract; tortious interference with contract; unlawful terms and conditions of employment; retaliation; defamation; invasion of privacy; claims for unlawful conspiracy; discrimination, including any discrimination claim arising under the Age Discrimination In Employment Act of 1967, as amended, 29 U.S.C. §621 et seq. (“ADEA”); Title VII of the Civil Rights Act of 1964, as amended, 29 U.S.C. §2000e et seq.; the Federal Rehabilitation Act of 1973, as amended, 29 U.S.C. §701 et seq.; the Americans with Disabilities Act of 1990, as amended, ▇▇ ▇.▇.▇. §▇▇▇▇▇ et seq.; the Family and Medical Leave Act of 1993, 29 U.S.C. §2601 et seq.; the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §201 et seq.; the Equal Pay Act of 1963, as amended, 29 U.S.C. §206(d) et seq.; the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §301 et seq.; the Worker Adjustment and Retraining ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇▇ et seq.; the Connecticut Human Rights and Opportunities Act, C.G.S. §46a-51 et seq., the Connecticut Family and Medical Leave Act, C.G.S. §31-51kk et seq., the Connecticut Wage Payment Laws, C.G.S. §31-58 et seq., any other federal, state, or local constitutional provision, statute, executive order, or regulation or ordinance relating to employment and/or civil rights, any other claims whether based on contract or tort. |
| 5. | The Employee understands that (s)he is knowingly and voluntarily releasing all Claims, which include claims that Employee may not know about. Employee assumes this risk, and expressly waives any and all such unknown rights. Employee acknowledges that (s)he understands the meaning and significance of this waiver. |
Employee further understands that (s)he is not releasing any claims that may arise after signing this Agreement, or any right to enforce the terms of this Agreement.
| 6. | No Other Proceedings. The Employee represents that (s)he has not and will not file or join in any action, charge, claim, complaint, lawsuit, or proceeding of any kind against any of the Released Parties (other than pursuing a claim for unemployment compensation benefits to which the Employee may be entitled) with respect to any claim that is released in this Agreement. Should the Employee file or join in any action, claim, complaint, lawsuit, or proceeding of any kind against the Company or any of the other Released Parties, based on any claim that the Employee has released, or should such an action, claim, complaint, lawsuit, or proceeding be filed on the Employee’s behalf, the Employee agrees to withdraw, dismiss, or cause to be withdrawn or dismissed, with prejudice, any such action, claim, complaint, lawsuit, or proceeding of any kind that is pending in any federal, state, or local agency or court. For the avoidance of doubt, this Agreement does not affect or limit any claims that, under controlling law, may not be released by private agreement, including, without limitation, (a) any claims under Workers’ Compensation laws; or (b) the right to file a charge with the Equal Employment Opportunity Commission or similar state or local agency, or with the National Labor Relations Board, or to provide information to or assist such agency in any proceeding, provided, however, that the Employee agrees that by signing this Agreement, the Employee relinquishes any right to receive any personal monetary relief or personal equitable relief with respect to any claim filed by the Employee or on the Employee’s behalf in any such proceeding. Additionally, nothing in this Agreement shall limit or restrict the Employee’s right under the ADEA to challenge the validity of this Agreement in a court of law. |
| 7. | No Sale of Claim. The Employee represents that the Employee has not given or sold any portion of any claim discussed in this Agreement to anyone else. |
| 8. | Confidential Information; Return of Property. |
| (a) | The Employee acknowledges that during the course of the Employee’s employment with the Company, the Employee was entrusted with certain personnel, legal, business, financial, technical, and other proprietary information and materials that are the property of the Company and that involve confidential information concerning, among other things, the Company’s dealings, the Company’s customers, vendors, employees, and agents. The Employee agrees and promises that the Employee will not communicate, disclose or cause to be communicated or disclosed to any third party, or use for the Employee’s own benefit or for the benefit of any other person or entity, without the prior written consent of the Company, any of the above-mentioned information or material, except as required by law. In addition, Employee agrees to continue to be bound and obligated by the terms of the Confidentiality and Employment-At-Will Agreement, executed by Employee on , a copy of which is attached hereto as Exhibit A. |
| (b) | The Employee represents that the Employee has returned or will return to the Company no later than five (5) business days after the Separation Date, any and all property belonging to the Company in Employee’s possession, custody or control. This includes, but is not limited to company vehicle(s), credit card(s), books, equipment, computer hardware and software, and originals and all copies of any business records or documents of any kind, belonging or related to the Company, together with all notes and summaries relating thereto, regardless of the sources from which such records or documents were obtained, and whether in physical or electronic form. Additionally, the Employee represents that the Employee has returned to the Company all keys, fobs, security cards, passwords, and other means of access to the Company’s offices or other facilities. |
| 9. | Confidentiality of this Agreement. The Employee agrees to keep the terms and existence of this Agreement completely confidential except where such agreement not to disclose is prohibited by law and/or where disclosure is required as part of Employee’s claim(s) for Unemployment Compensation under state law. In addition, the Employee may share the information with the Employee’s spouse, attorney, or tax advisor, provided that such persons are informed of and agree to be bound by this confidentiality provision. |
| 10. | No Disparaging Remarks/References. The Employee agrees to refrain from taking any actions or making any statements, written or oral, that disparage. or defame any of the Released Parties, or their business operations, policies, or practices. In the event that the Company receives a request for a reference relating to Employee’s employment, the Company will release only the dates of employment and job title(s) held by the Employee. |
| 11. | No Entitlement To Separation Benefits. The Employee acknowledges that in the absence of Employee’s voluntary agreement to be bound by the terms of this Agreement and voluntary execution of this Agreement, Employee would not be otherwise entitled to any of the separation benefits specified in Section 3 of this Agreement. |
| 12. | Consultation with Counsel. THE EMPLOYEE ACKNOWLEDGES THAT THE EMPLOYEE HAS BEEN ADVISED, IN THIS WRITING, TO CONSULT WITH AN ATTORNEY OF THE EMPLOYEE’S CHOICE PRIOR TO SIGNING THIS AGREEMENT AND THAT THE EMPLOYEE HAS SIGNED THIS AGREEMENT KNOWINGLY, VOLUNTARILY, AND FREELY, AND WITH SUCH COUNSEL (IF ANY) AS THE EMPLOYEE DEEMED APPROPRIATE. The Employee understands, however, that whether or not to consult with an attorney is the Employee’s decision. The Employee agrees that the Company shall not be required to pay any of the Employee’s attorneys’ fees in this or any related matter or lawsuit, now or later, and that the amounts payable under Section 3 are in full and complete payment of all matters between the Employee and the Company, including, without limitation, attorneys’ fees and costs. |
| 13. | Right to Revoke Agreement. THE EMPLOYEE ACKNOWLEDGES THAT THE EMPLOYEE HAS BEEN PROVIDED WITH A PERIOD OF TWENTY-ONE (21) DAYS IN WHICH TO CONSIDER WHETHER TO ENTER INTO THIS AGREEMENT. THE EMPLOYEE FURTHER ACKNOWLEDGES THAT THE EMPLOYEE HAS BEEN ADVISED OF THE EMPLOYEE’S RIGHT TO REVOKE THIS AGREEMENT DURING THE SEVEN (7) DAY PERIOD FOLLOWING EXECUTION OF THIS AGREEMENT. TO REVOKE, THE EMPLOYEE MUST GIVE THE COMPANY WRITTEN NOTICE OF THE EMPLOYEE’S REVOCATION WITHIN THE SEVEN (7) DAY REVOCATION PERIOD. |
| 14. | Effective Date of Agreement. This Agreement becomes effective on the eighth (8th) day after the Employee signs and returns it to the Company, provided the Employee has not revoked this Agreement pursuant to Section 13. After the Employee signs and dates the Agreement, the Employee must return the Agreement to the Company representative noted in Section 17 below. |
| 15. | No Reliance. The parties acknowledge that they execute this Agreement in reliance on their own personal knowledge, and are not relying on any representation or promise made by any other party that is not contained in this Agreement. |
| 16. | Entire Agreement. This Agreement contains the entire agreement between the parties concerning the subject matter of this Agreement and supersedes all prior negotiations, agreements, or understandings between the parties, except that any obligations of the Employee to the Company, under any agreement, policy, or other document in force on the Separation Date, that by their terms apply after the termination of his employment shall survive the execution of this Agreement and continue in full force and effect. No promises or oral or written statements have been made to the Employee other than those in this Agreement. If any portion of this Agreement is found to be unenforceable, all other portions that can be separated from it, or appropriately limited in scope, shall remain fully valid and enforceable. |
| 17. | Notice. Any notice to be given under this Agreement shall be in writing and delivered personally, sent by a nationally recognized courier service or sent by registered or certified mail, postage prepaid, return receipt requested, addressed to the party concerned at the address indicated below or to such other address as such party may subsequently give written notice of under this Agreement: |
| If to the Employee:
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If to the Company: |
| 18. | Governing Law. This Agreement shall be governed by the substantive laws of the Stateof Connecticut without regard to conflicts of law principles. |
| 19. | Inducement. To induce the Company to provide the Employee the considerationrecited in this Agreement, the Employee voluntarily executes this Agreement, acknowledges that the only consideration for executing this Agreement is that recited in this Agreement, and that no other promise, inducement, threat, agreement, or understanding of any kind has been made by anyone to cause the Employee to execute this Agreement. The Employee acknowledges and agrees that the consideration recited in this Agreement is more than the Company is required to deliver under its policies and procedures, and that any additional consideration is delivered in consideration for the Employee signing this Agreement. |
THE EMPLOYEE UNDERSTANDS THIS AGREEMENT CONTAINS A FINAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS AND THAT THE EMPLOYEE CAN MAKE NO FURTHER CLAIM OF ANY KIND AGAINST THE COMPANY OR ANY OF THE OTHER RELEASED PARTIES ARISING OUT OF ACTIONS OCCURRING THROUGH THE DATE THE EMPLOYEE EXECUTES THIS AGREEMENT.
THE EMPLOYEE AGREES THAT THE EMPLOYEE READ AND UNDERSTANDS THIS AGREEMENT, AND IS ENTERING INTO THIS AGREEMENT KNOWINGLY AND VOLUNTARILY AND WITHOUT ANY COERCION.
UNIMIN CORPORATION
| By: | ||||
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Title: ____________________________ |
Date:_________________________ | |||
| EMPLOYEE | ||||
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Date:_________________________ | |||
County of Fairfield )
)ss:
State of Connecticut )
I , under penalty of perjury, hereby declare that I have knowingly
and voluntarily executed this Agreement by affixing my signature above.
Sworn & Subscribed before me this day of
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| Notary Public |
| My Commission Expires: |