Exhibit 10(h)
SEPARATION AGREEMENT AND RELEASE
--------------------------------
This Agreement is made between Sigma-Xxxxxxx Corporation,
including its divisions, subsidiaries, affiliated companies, successors
and assigns ("SIAL"), and Xxxxx Xxxxxx ("Gleich").
WHEREAS, Gleich desires to retire from his employment and settle
all legal rights and obligations resulting from Gleich's employment
with SIAL.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations and undertakings of the parties set forth
herein, the adequacy and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Gleich has elected to retire from his employment with SIAL
with an effective date as set forth in Paragraph 3.
2. In consideration for Gleich's execution of this Separation
Agreement and Release (hereinafter "Agreement"), SIAL agrees:
(a) To pay Gleich a severance payment in the amount of
$750,000.00 less deductions required by law. This amount shall be
payable as follows: one-third payable January 5, 1998, one-third
payable March 31, 1998 and one-third payable June 30, 1998.
(b) To continue to cover Gleich under SIAL's group medical
insurance plan through March 26, 2000. The parties acknowledge and
agree that the effective date of Gleich's retirement shall constitute
the qualifying event for purposes of COBRA. Should Gleich exercise his
right to elect COBRA continuation coverage, SIAL agrees to pay for such
coverage, provided such coverage does not extend beyond March 26, 2000.
Effective March 26, 2000, Gleich shall be eligible to participate,
should he so apply/elect, in SIAL's retiree health benefit program.
(c) To pay Gleich on January 5, 1998, the amount of $268,228.00
less deductions required by law. This amount represents payment for
4,500 Sigma Xxxxxxx incentive stock bonus units within the deferred
stock program, which value was calculated as of the close of business
on November 25, 1997 and increased as appropriate for tax
considerations.
(d) To allow Gleich ninety (90)days from the effective date of
his retirement to exercise all stock options, with all stock options to
be considered fully vested, in accordance with the terms of SIAL's
Stock Option Plan.
(e) If, in accordance with the Sigma-Xxxxxxx Incentive Stock
Plan, Gleich will be eligible for an award in 1997, in lieu of such
stock award, Gleich will be provided a cash payout in an amount equal
to the value of the award and increased as appropriate for tax
considerations. Such payment to Gleich will be made one week after the
awards have been made.
(f) To allow Gleich to retain his Company car, car phone and
computer, thereby releasing all claims of title/ownership thereto or
thereof.
(g) To reimburse Gleich for reasonable legal fees, accounting
fees or consulting fees concerning this Agreement.
3. Gleich's retirement shall become effective upon SIAL's
selection and hire of a Chief Financial Officer or June 30, 1998,
whichever occurs first.
4. Gleich has elected to delay the effective date of retirement
(as noted in Paragraph 3) and continue to provide his services to SIAL
in a professional and responsible manner. Based upon this additional
promise of Gleich, SIAL agrees, in addition to the foregoing, to
compensate Gleich at an annualized salary rate of $295,000.00, less
deductions required by law, until June 30, 1998. Such payments will be
made in accordance with the Company's normal payroll dates following
execution of this Agreement.
5. The parties agree that the compensation and benefits
described above provided Gleich by SIAL represents additional
compensation and benefits to which Gleich would not be entitled absent
this Agreement. The parties further agree that the compensation and
benefits described above constitute the total understanding of all
compensation and benefits payable by SIAL to Gleich with regard to his
employment by SIAL and the termination thereof, and that no other
compensation, bonuses, stock options, vacation, benefits or payments of any
kind will be paid other than the amounts set forth above.
6. SIAL hereby waives and releases Gleich from any claims of
breach of fiduciary duty and/or claims arising out of the performance
of Gleich's duties.
7. Gleich hereby waives and releases SIAL, its officers,
directors, representatives, and employees from any and all claims made,
or which could have been made, of whatever nature, as a consequence of
his employment or the termination of his employment relationship with
SIAL pursuant to this Agreement, or arising out of any known or unknown
fact, condition, or incident occurring prior to the date of this
Agreement, including, but not limited to, all claims of discrimination
under local, state or federal law, regulation or executive order,
including, but not limited to, all claims under the Age Discrimination
in Employment Act, Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, the Employee Retirement Income Security Act, the
Americans with Disabilities Act, the Missouri Human Rights Act, City of
Xx. Xxxxx Xxxxxxxxx Xx. 00000, all claims in contract or tort, all
claims for lost wages, bonuses, stock options, benefits, expenses,
severance, re-employment, service letters, compensatory or punitive
damages, attorney's fees and all claims for any other type of damage
relief. Gleich further waives all rights to future employment with
SIAL. Nothing contained in this Agreement shall be construed as a
waiver or release of any claim(s) of breach of contract arising out of
performance of this Agreement.
Notwithstanding the foregoing release, nothing contained in this
Agreement shall limit Gleich's rights to indemnification from SIAL or
his rights to coverage under SIAL's D&O coverage (or other insurance
coverage) for acts or omissions as an officer of SIAL that he would be
covered for under the terms of existing indemnification policies and
insurance policies.
8. Gleich covenants not to xxx XXXX or any other party released
herein with respect to any claim released pursuant to this Agreement.
9. Gleich agrees not to disclose the terms or details of this
Agreement to any person other than his attorney, accountant, income tax
preparer, spouse and children or pursuant to court order or as
otherwise required by law. Gleich agrees to ensure said individuals
maintain such confidentiality.
10. SIAL agrees to insure that those employees of SIAL or members
of the Board of Directors having knowledge of this Agreement will not
disclose the terms or details of this Agreement except on a need to
know basis, as required to comply with applicable securities
requirements, pursuant to court order or as otherwise required by law.
SIAL further agrees to insure that those employees of SIAL or members
of the Board of Directors having knowledge of this Agreement will not
defame Gleich or make defamatory comments concerning his job
performance.
11. By execution of this document, Gleich expressly waives any
and all rights to claims under the Age Discrimination in Employment Act
of 1967, 29 U.S.C. 621, et seq.:
(a) Gleich acknowledges that his waiver of rights or claims
refers to rights or claims arising under the Age Discrimination in
Employment Act of 1967, is in writing and is understood by Gleich;
(b) Gleich expressly understands that by execution of this
document, Gleich does not waive any rights or claims that may arise
after the date the waiver is executed;
(c) Gleich acknowledges that the waiver of his rights or claims
arising under the Age Discrimination in Employment Act is in exchange
for the consideration outlined in this Agreement which is above and
beyond that to which Gleich is entitled and that this waiver is not
requested in connection with an existing incentive or other employment
termination program;
(d) Gleich acknowledges that SIAL expressly advised him on
November 26, 1997, to consult an attorney of his choosing prior to
executing this document and that he has been given a period of not less
that twenty-one (21) days within which to consider this document;
(e) Gleich acknowledges he has been advised by SIAL that he is
entitled to revoke (in the event he executes this document) his waiver
of rights or claims arising under the Age Discrimination in Employment
Act within seven (7) days after executing this document or on or before
January 2, 1998, whichever is later, and that said waiver will not and
does not become effective or enforceable until this revocation period
has expired. Gleich agrees that payment of monies due under this
executed and unrevoked waiver shall not be payable until this
revocation period has expired.
The parties further agree as follows:
12.1 That the covenants of this Agreement are severable and that
if a clause(s) shall be found unenforceable, the entire document shall
not fail but shall be construed and enforced without any severed
clause(s) in accordance with the terms of this document;
12.2 That this Agreement shall supersede all other oral or written
agreements or understandings between the parties with the exception
that Gleich shall continue to be bound by the Agreement between SIAL
and Gleich executed by him during employment by SIAL and attached
hereto as Appendix A;
12.3 That this Agreement contains the entire understanding of the
parties and that this Agreement shall not be modified, altered or
changed except upon the express written consent of the parties hereto;
12.4 That SIAL's failure to exercise any of its rights in the
event Gleich breaches any of the separate and distinct promises in this
Agreement shall not be construed as a waiver of such breach or prevent
SIAL from later enforcing strict compliance with any and all promises
in this Agreement;
12.5 SIAL and the other parties released herein specifically deny
that they have violated any statute, regulation, or any other legal
duty governing their relationship with Gleich. It is understood that
the payments and other consideration provided by this Agreement are not
and shall not be construed to be an admission of guilt or liability on
the part of any party hereby released.
13. Gleich acknowledges he has read this Agreement, that he has
had a reasonable amount of time to consider its terms, that the only
consideration for him signing this Agreement are the terms stated
above, that no other promise, agreement, statement or representation of
any kind has been made to him by any person or entity to cause him to
sign this Agreement, that he is competent to execute this Agreement,
that he has had an adequate opportunity to discuss this Agreement with
an attorney and he has done so or he has voluntarily elected not to do
so, that he fully understands the meaning and intent of this Agreement
and that he is voluntarily executing it of his own free will after good
faith negotiations with SIAL concerning its terms.
AGREED TO AND ACCEPTED:
/s/ Xxxxx Xxxxxx
_____________________________
Xxxxx Xxxxxx
STATE OF MISSOURI )
) ss.
CITY OF ST. LOUIS )
COMES NOW Xxxxx Xxxxxx, who states to me that he has read and understands
the foregoing Agreement and agrees to and accepts its terms and conditions as a
free act of his own volition.
Subscribed and sworn to before me this 15th day of December, 1997.
/s/ Xxxxx X. Xxxxxx
------------------------------
Notary Public
My Commission Expires:
8/6/2001
SIGMA-XXXXXXX CORPORATION
By: /s/ Xxx Xxxx
--------------------------
Date: 12/11/97
------------------------
Appendix "A"
[Company Logo]
AGREEMENT between SIGMA CHEMICAL COMPANY and
--------------------------------------------
Xxxxx X. Xxxxxx
-----------------------------------------------
In consideration of the compensation and other benefits of my employment or
continued employment by Sigma Chemical Company (the Company) and of other
valuable consideration, I agree as follows:
CONFIDENTIAL INFORMATION
I recognize that the Company is engaged in the business of research,
development, manufacture and sale of chemicals, chemical products and allied
activities, which business requires for its successful operation the fullest
security of its Confidential Information of which I will acquire knowledge
during the course of my employment.
As used in this agreement, "Confidential Information" means all technical
and business information of the Company, or which is learned or acquired by the
Company from others with whom the Company has a business relationship in which,
and as a result of which, similar information is revealed to the Company,
whether patentable or not, which is of a confidential, trade secret and/or
proprietary character and which is either developed by me (alone or with others)
or to which I shall have had access during my employment. Confidential
Information shall include all data, designs, plans, notes, memoranda, work
sheets, formulas, processes, patents, customer and supplier lists.
I shall use my best efforts and diligence both during and after my employment
with the Company to protect the confidential, trade secret and/or proprietary
character of all Confidential Information. I shall not, directly or indirectly,
use (for myself or another) or disclose any Confidential Information, for so
long as it shall remain proprietary or protectible as confidential or trade
secret information, except as may be necessary for the performance of my duties
for the Company.
I shall promptly deliver to the Company, at the termination of my employment
or at any other time at the Company's request, without retaining any copies, all
documents and other material in my possession relating, directly or indirectly,
to any Confidential Information.
Each of my obligations in this section shall also apply to the confidential,
trade secret and proprietary information learned or acquired by me during my
employment from others with whom the Company has a business relationship.
COMPETITIVE ACTIVITY
I shall not, directly or indirectly (whether as owner, partner, consultant,
employee or otherwise), at any time during the period of my employment by the
Company and for a period of two years following termination for any reason of my
employment with the Company engage in or contribute my knowledge to any work or
activity that involves a product, process, service or development which is then
competitive with and the same as or similar to a product, process, service or
development on which I worked or with respect to which I had access to
Confidential Information while with the Company. However, I shall be permitted
to engage in such proposed work or activity, and the Company shall furnish me a
written consent to that effect signed by an officer, if I shall have furnished
to the Company clear and convincing written evidence, including assurances from
me and my new employer, that the fulfillment of my duties in such proposed work
or activity would not cause me to disclose, base judgements upon, or use any
Confidential Information, including information relating to the identity of or
products supplied to or purchased from the customers or suppliers of
the Company.
Following expiration of said two-year period, I shall continue to be
obligated under the "Confidential Information" section of this Agreement not to
use or to disclose Confidential Information so long as it shall remain
proprietary or protectible as confidential or trade secret information.
Following termination of my employment for any reason, I agree to advise the
Company of my new employer within ten days after accepting new employment. I
further agree to keep the Company so advised of any change in my employment for
two years following termination of my employment with the Company.
I understand that it is not the intention of this Agreement to prevent me
from earning a livelihood utilizing my general purchasing, sales, professional
or technical skills in any of the hospitals, businesses, research or
manufacturing facilities of companies which are not directly or indirectly in
competition with the Company.
IDEAS, INVENTIONS, DISCOVERIES
I shall promptly disclose to the Company all ideas, inventions or
discoveries, whether or not patentable, which I may conceive or make (alone or
with others) during my employment , whether or not during working hours, and
which, directly or indirectly,
(a) relate to matters within the scope of my duties or field of
responsibility during my employment with the Company; or
(b) are based on my knowledge of the actual or anticipated business or
interest of the Company; or
(c) are aided by the use of time, materials, facilities or information of
the Company.
I hereby assign to the Company or its designee, without further compensation,
all of my right, title and interest in all such ideas, inventions or discoveries
in all countries of the world.
Without further compenstation but at the Company's expense, I shall give all
testimony and execute all patent applications, rights of priority, assignments
and other documents and in general do all lawful things requested of me by the
Company to enable the Company to obtain, maintain and enforce protection of such
ideas, inventions and dicoveries for and in the name of the Company or its
designee (as the case may be) in all countries of the world. However, should I
render any of these services during a two-year period following termination of
my employment, I shall be compensated at a rate per hour equal to the basic
salary I revceived from the Company at the time of termination and shall be
reimbursed for reasonable out-of-pocket expenses incurred in rendering
the services.
GENERAL
If I am employed by an affiliate of the Company and have not entered into a
superseding agreement with my new employer covering the subject matter of this
Agreement, then this Agreement shall continue in effect and my new employer
shall be termed "the Company" for all pruposes hereunder and shall have the
right to enforce this Agreement as my employer. In the event of any
subsequent employment by the Company or any other affiliate, my new employer
shall succeed to all rights under this Agreement so long as such employer
shall be an affiliate of the Company and so long as this Agreement has not
been superseded.
As used in this Agreement, an "affiliate" of the Company shall mean any
parent of subsidiary of the Company, any company owned or controlled by any
parent of the Company as well as any subsidiary of such companies and any
company or corporation with which the Company has a contractual or ongoing
business relationship which requires the Company and such other company or
corporation to agree to noncompetition or non-disclosure covenants similar to
or the same as those contained herein.
The Company and I shall have the right to terminate my employment at any time
by giving at least 30 days written notice to the other party; provided, however,
the Company may terminate my employment without notice at any time for any cause
deemed by it to be a breach of my employment duties or of any of my obligations
under this Agreement. The Company, at its option, may elect to pay my salary
for the notice period instead of continuing my active employment during that
period.
I hereby acknowledge that damages for the violation of the provisions
contained in this Agreement will not give fill and sufficient relief to the
Company, and I agree that in the event of any violation of any of said
provisions the Company shall be entitled to injunctive relief against violation
thereof, in addition to any other rights it may have by reason of said
violation.
This Agreement shall be interpreted under the laws of the State of Missouri.
If any provision of this Agreement is held invalid in any respect, it shall not
affect the validity of any other provision of this Agreement. If any provision
of this Agreement is held to be unreasonable as to time, scope or otherwise, it
shall be construed by limiting and reducing it so as to be enforceable under
then applicable law.
This agreement shall supercede any and all previous employment agreements
between the company and me.
This Agreement is signed in duplicate, as of the 30th day of August, 1982.
SIGMA CHEMICAL COMPANY
By /s/ Xxxx X. Xxxx /s/ Xxxxx X. Xxxxxx
------------------------------------ --------------------------------------
Signature of Employee
Xxxx X. Xxxx Xxxxx X. Xxxxxx
-------------------------------------- --------------------------------------
Typed Name and Title Typed Name of Employee
