SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT is made and entered into the 23rd day of
September, 1996, by and between Crop Growers Corporation, a Delaware corporation
(the "Company"), and ▇▇▇▇ ▇. Black (the "Executive"),
W I T N E S S E T H:
WHEREAS, the Executive previously served as an executive, officer and
director of the Company and was employed by the Company under an Employment
Agreement dated June 22, 1994, as amended March 29, 1996 (the "Employment
Agreement"), and an Amendment To Employment Agreement Providing For A Leave of
Absence dated on or about May 9, 1996 (the "Leave of Absence Agreement"); and
WHEREAS, the parties have negotiated a mutual consent separation and
termination of the Employment Agreement and Leave of Absence Agreement; and
WHEREAS, the parties desire to reduce to writing their agreement with
respect to the separation of the Executive from the affairs of the Company and
the termination of the Employment Agreement and the Leave of Absence Agreement;
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual covenants and
agreements contained herein, the receipt and sufficiency of which is hereby duly
acknowledged, the Executive
and the Company covenant and agree as follows:
1.0 IRREVOCABLE PROXY. Concurrently with the execution of this
Separation Agreement, the Executive will sign the Agreement Granting
Irrevocable Proxy as well as the Irrevocable Proxy which are attached
hereto as Exhibit "A" (the "Proxy Agreement") and Exhibit "B" (the
"Irrevocable Proxy") and will deliver the signed Proxy Agreement and
Irrevocable Proxy to the Great Falls, Montana, office of ▇▇▇▇▇▇ &
Whitney, to be held in escrow by that law firm until receipt of
necessary approvals under the applicable insurance laws of the States
of Kansas and North Dakota. Once approved by the Insurance
Commissioners of those states, the Irrevocable Proxy and Proxy
Agreement will be delivered to an institutional Proxy Holder (the
"Proxy Holder") for execution and delivery and shall thereafter be
effective. With respect to the Proxy Agreement and the Irrevocable
Proxy, the parties specifically agree that:
a. All shares (the "Shares") of capital stock of the Company,
including common stock, owned beneficially or of record by the
Executive, including any shares or other voting securities
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that may be acquired by the Executive in the future, shall be
subject to the Proxy Agreement and the Irrevocable Proxy as set
forth therein, and the Executive shall not have any voting rights
with respect to the Shares prior to the termination of the
Irrevocable Proxy.
b. During the term of this Separation Agreement, the Executive may
not sell, gift, pledge, encumber or otherwise transfer the Shares
to a spouse, child or to any other person who is an affiliate of
the Executive or in circumstances where the Executive retains any
beneficial ownership of the Shares transferred. However, if
concurrently with such transfer, the transferee agrees in writing
that the Shares being transferred remain subject to this
Separation Agreement, the Proxy Agreement and the Irrevocable
Proxy, then the Executive may make such transfer. Nothing in
this Separation Agreement, the Proxy Agreement or the Irrevocable
Proxy, however, shall limit the right of the Executive to sell,
gift, pledge, encumber or otherwise transfer all or part of the
Shares to
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persons who are not affiliates of the Executive and with respect
to which the Executive retains no beneficial ownership, and any
Shares sold, gifted or otherwise transferred after the date
hereof to persons other than affiliates and with respect to which
the Executive retains no beneficial ownership, are expressly
excluded from the scope and application of this Separation
Agreement, the Proxy Agreement and the Irrevocable Proxy. The
Company acknowledges that stock sales made by the Executive
pursuant to Rule 144 or Rule 144(f) promulgated under the
Securities Act of 1933, as amended, may be made without violation
of the transfer restrictions of this Section 1.0.b. Certificate
evidencing the Shares will have the following legend affixed to
them:
"The shares represented by this certificate may not be
transferred without compliance with the transfer restrictions
contained in the Separation Agreement dated September 23, 1996,
between the
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Corporation and ▇▇▇▇ ▇▇▇▇▇. Copies of such agreement may be
obtained upon written request to the Secretary of the
Corporation."
Upon receipt from the Executive and his brokerage firm of all documentation
and information reasonably required by the Company, the Company will
promptly cause its transfer agent to remove the above legend from all
shares sold by the Executive pursuant to Rule 144 and Rule 144(f). For the
purposes of this Separation Agreement, the Proxy Agreement and the
Irrevocable Proxy, the term "beneficial ownership" shall have the meaning
set forth in Rule 13d-3(a) under the Securities and Exchange Act of 1934.
c. The costs and expenses of the Proxy Holder under the Proxy
Agreement shall be paid by the Company, up to $25,000 per twelve
(12) month period, in accordance with a fee arrangement to be
entered between the Proxy Holder and the Company. The Executive
and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall each pay his proportionate share of any
remaining costs and expenses of the Proxy Holder.
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2.0 EMPLOYMENT AGREEMENT AND LEAVE OF ABSENCE AGREEMENT. The Employment
Agreement and the Leave of Absence Agreement are hereby terminated,
effective as of the close of business on June 30, 1996.
2.1 In conjunction with the termination of the Employment Agreement
and the Leave of Absence Agreement, the Executive will be
entitled to receive all compensation, benefits and reimbursements
of business expenses (in accordance with the Company's policy) to
which he was entitled under these Agreements through June 30,
1996, except as otherwise provided by Section 7.0 hereof.
Thereafter, the Executive will not be entitled to any
compensation, benefits and/or reimbursements except as noted in
Section 2.2 and 3 of this Separation Agreement. All such
expenses (which do not include any expenses under the
indemnification agreement described in section 3.0) have been
submitted to the Company.
2.2 The Executive shall be entitled to all post employment benefit
relationships required by law to be made available to the
terminated employees
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under the Employee Retirement Income Security Act of 1974 (e.g.,
the Executive has certain rights with respect to amounts in the
Company's 401(k) plan and health benefit rights under COBRA) and
under Section 6 (Stock Options) hereof, but shall not be entitled
to any other benefits under the Employment Agreement and Leave of
Absence Agreement.
2.3 The Executive covenants and agrees that for a period commencing
on June 30, 1996, and continuing for a period of six (6) months
thereafter, the Executive will not:
a. Solicit any customers who were customers of the Company
within the twelve (12) months immediately preceding June 30,
1996, for the benefit of any company or business described
in sub-part b., below; or
b. Own any part of a competitor; [i.e., a business enterprise
which competes with the Company in offering the same
products or services which in the Company's fiscal year
ended prior to the date of this Separation
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Agreement generated ten percent (10%) or more of the
Company's total revenues as reflected in the Company's most
recent annual audited financial statements], or work on a
full time, part time or consulting basis for any
corporation, partnership, sole proprietorship or any other
legal entity which is a competitor (irrespective of the
actual location of the competitor) within the continental
United States. Excepted from this restriction is ownership
of a public company as to which the Executive owns five
percent (5%) or less of the outstanding common stock of such
company.
2.4 The Executive acknowledges and accepts that the Company has
terminated its business relationship and ceased all business
dealings with the Executive, either directly or indirectly, as an
employee, director, officer, voting shareholder or consultant
with the Company and acknowledges that the Company has so
certified to the United States Department of Agriculture, Federal
Crop Insurance
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Corporation ("FCIC"). As such, and except as stated otherwise in
this Separation Agreement, the Executive understands and agrees
that he will not have access to the offices of or property owned
or leased by the Company (for the purposes of this Section 2.0 of
the Separation Agreement, "Company" shall refer to Crop Growers
Corporation or any of the entities affiliated with Crop Growers
Corporation) or use of or access to any of the Company's
employees, facilities, properties, chattels, services and/or
other assets. Further, the Executive agrees that he will not
have contact with any employee or director of the Company for any
purpose related to the business of the Company. The foregoing,
however, is not intended to prohibit limited contact or
communications between the Executive and the Company (a)
initiated by the Company, (b) relating to personal affairs of the
Executive, including without limitation inquiries relating to
health insurance, 401(k), stock option matters or matters
relating to this Separation Agreement or (c) relating to
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the access described below in this Section. This Section 2.4
shall terminate and be of no further force or effect upon the
expiration or termination of any period of suspension or
debarment imposed by the FCIC pursuant to 7 C.F.R. Section
3017.320(a)(i).
Notwithstanding the above restrictions, the Executive and
his counsel shall have reasonable access to the Company's
employees and to records (including the right to copy the same),
for the purpose of preparing or presenting the Executive's
position, defense or response in connection with any criminal,
civil or administrative matters involving the Executive. The
following procedures shall apply with respect to that access:
a. The Executive and his counsel shall use reasonable efforts
to access information and employees through counsel to the
Company;
b. Reasonable prior notice to review Company books and records
and to interview Company employees shall be submitted to the
Company's CEO, or his designee;
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c. Company books, records or files may not be removed from the
Company's offices without the written consent of the Company
or pursuant to a subpoena obtained by the Executive.
2.5 The Executive shall continue to be subject to all obligations
with respect to confidentiality existing prior to June 30, 1996.
3.0 INDEMNIFICATION AGREEMENT. The Indemnification Agreement dated June 22,
1994, between the Company and the Executive remains in full force and
effect and the Company will continue to advance expenses to the Executive
in accordance with the terms of the Indemnification Agreement. The
Executive or his counsel will submit requests for such advances to the
Chief Financial Officer of the Company as soon as reasonably practical
after expenses are incurred.
4.0 DISPOSAL OF SHARES. UNLESS ALREADY BELOW TEN PERCENT (10%), the Executive
will prepare a plan to dispose of such number of shares of the capital
stock of the Company owned by the Executive as is necessary to reduce the
Executive's ownership of all of the capital
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stock of the Company to less than ten percent (10%) of all outstanding
shares of the capital stock of the Company, on a fully diluted basis,
during the 24 month period ending on June 30, 1998. For purposes of this
Separation Agreement, the term "fully diluted basis" means all outstanding
shares together with all shares issuable upon the conversion of all
securities convertible (at that time) into the voting securities of the
Company and the exercise of all vested and currently exercisable (at that
time) outstanding warrants, options or other rights to purchase shares of
voting securities of the Company.
4.1 The Company will purchase 68,000 shares of the common stock of the
Company from the Executive at a price of $9.841667 per share, without
the deduction of any costs or commissions. The closing of this
purchase will occur upon execution and delivery of this Separation
Agreement. The purchase price will be paid to the Executive by
certified check at the closing.
4.2 If and to the extent requested by the Executive, the Company will
purchase up to 4,000 shares of
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the common stock of the Company from the Executive on the last
business day of each month (the "Monthly Closing Date") during the
four month period from September 1, 1996, through December 31, 1996.
The purchase price for any shares sold by the Executive to the Company
under this provision will be the average of the closing bid and ask
prices for the Company's common stock during the thirty (30) calendar
day period preceding the applicable Monthly Closing Date. The full
amount of the purchase price will be paid by the Company by certified
check on the applicable Monthly Closing Date upon delivery by the
Executive of certificates representing the Shares being purchased.
Notice by the Executive to sell shares shall be given at least one (1)
business day prior to the Monthly Closing Date. The Company reserves
the right to postpone the purchase of such shares if the Company
reasonably believes, based upon advice of counsel, that purchase at
such time would create significant securities concerns or issues (such
as under Rules
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10b-5 of 10b-6) for it, provided that this postponement shall not
relieve the Company from its obligation to purchase shares for which
purchase was postponed under this sentence. Any such postponed
purchase shall be concluded promptly after any such securities
concerns or issues are reasonably resolved based on advice of counsel,
and the purchase price shall remain the same as if that purchase had
closed on the applicable Monthly Closing Date.
4.3 If after the buy back of the Shares referenced in 4.1 of this
Separation Agreement the Executive still beneficially owns more than
ten percent (10%) of the outstanding shares of the capital stock of
the Company on a fully diluted basis, then during the 18 month period
from January 1, 1997, through June 30, 1998, the Executive will sell
or otherwise dispose of a sufficient number of shares of the capital
stock of the Company so that, at the expiration of this 18 month
period, the number of shares of the capital stock of the Company
beneficially owned by the Executive will
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be less than ten percent (10%) of the then outstanding shares of the
capital stock of the Company, on a fully diluted basis.
4.4 The Executive warrants and represents that on the date of each
closing, he will have good and marketable title to all such shares of
Company stock which the Company purchases from him under this Section
4 and that those shares upon delivery to the Company will be free of
all liens, encumbrances, claims or other transfer restrictions.
5.0 TERMINATION DATE. Sections 1.0 (excluding only 1.0(c)) 4.0 and 4.3 of this
Separation Agreement shall terminate and the Executive will have no further
obligations under those sections, effective as of the earliest to occur of:
(i) The acquittal of the Executive of the criminal charges brought against
the Executive in the Indictment now pending against the Executive in
the United States District Court for the District of Columbia, being
number 96-0181 on the docket of said court (the "Indictment");
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(ii) The withdrawal or dismissal of those criminal charges referenced in
the Indictment (without any plea arrangement or plea bargain entered
into by the Executive); or
(iii)The expiration or termination of any period of suspension or debarment
imposed by the FCIC pursuant to 7 C.F.R. Section 3017.320(a)(i); or
(iv) Death of the Executive.
For purposes of this Separation Agreement, the earliest of the events
described in the (i) through (iv) are referred to as the "Termination
Date."
6.0 STOCK OPTIONS. All options previously granted the Executive for the
purchase of shares of common stock of the Company shall be amended, and are
hereby amended, so as to remain in effect, and continue to vest with the
passage of time, until the end of the original term of the applicable
option agreement, even though the terms of such option agreement (or the
plan under which the option is granted) may provide for an earlier
termination of the option upon the Executive ceasing to be an employee of
the Company. The Company's committee of disinterested directors
responsible for
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administering the Company's plan pursuant to which the Executive's stock
options were granted has authorized the actions and amendments contemplated
by this Section 6.0.
6.1 The Executive acknowledges and understands that the provisions in this
Section 6 will disqualify any applicable incentive stock options and
make them non-incentive stock options. The Executive agrees to pay
whatever withholding taxes may be payable with respect to the exercise
of any stock option and to give reasonable assurance thereof to the
Company prior to the issuance of any option shares.
7.0 AUTHORIZATION. The Company warrants and represents that the execution,
delivery and performance of this Separation Agreement has been duly
authorized by its Board of Directors, or any applicable Committee(s) of the
Board of Directors having responsibility for the particular subject matter,
is legally enforceable against the Company in accordance with its terms and
does not conflict with or contravene the Company's
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certificate of incorporation, by-laws or any agreement to which the Company
is a party or by which the Company is bound. The Executive warrants and
represents that he has full right, power and authority to enter into this
Separation Agreement.
8.0 CONSTRUCTION. Nothing in this Separation Agreement shall be construed or
interpreted as evidence or acknowledgment by the Executive or the Company
of any wrongdoing or any impropriety of any nature.
9.0 GOVERNING LAW. This Separation Agreement shall be governed by the laws of
the State of Delaware without giving effect to the conflict of laws
provision thereof.
10.0 COUNTERPARTS. This Separation Agreement may be executed in one or
more counterparts, including by facsimile transmission, each of
which shall be considered to be an original for purposes of the
signature of this Separation Agreement.
11. REGULATORY APPROVAL. The parties acknowledge that should the FCIC or
another regulatory body with competent jurisdiction later require the
Company or the Executive to take actions which would require the
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amendment of this Separation Agreement, the Company and the Executive shall
meet in an attempt to satisfy such requirements.
12.0 COMPLETE AGREEMENT. This Separation Agreement evidences the complete
agreement by and between the Executive and the Company and no modification
of this Separation Agreement save those made in writing and executed by
both parties shall be binding.
EXECUTIVE
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▇▇▇▇ ▇. BLACK
CROP GROWERS CORPORATION
By:
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Its:
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