Exhibit 10.3
MGP INGREDIENTS, INC.
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
WHEREAS, the undersigned employee wishes to
voluntarily resign employment with MGP Ingredients, Inc.;
WHEREAS, this
Separation Agreement and Release of Claims (“Agreement”) is dated as of April 17,
2009, is by and between Robert Zonneveld (“Employee”) and MGP Ingredients, Inc.
(“Employer”), and shall be effective upon the expiration of the Agreement’s
revocation period;
WHEREAS, MGP
Ingredients is making available to the undersigned employee a separation
benefit in recognition of Employee’s efforts in the restructuring of Employer
and 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, Robert
Zonneveld (“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 effective 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
2
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 on Employee’s behalf against Employer based on
any fact or circumstance occurring up to and including the effective date of
this Agreement.
Employee’s last date of
employment will be April 17, 2009. By this Agreement, Employee waives any claim
for reinstatement and agrees not to seek re-employment 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 Thirty-seven Hundred Fifty Dollars ($3,750.00)
per week from April 20, 2009 until July 17, 2009. Compensation checks
will be paid at net pay after normal deductions. The above amount is inclusive
of accrued vacation that was not paid prior to April 17, 2009. 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. Employer will pay a one time amount of
$3,600.00 to Employee to assist in COBRA premium payments. Employee will be responsible to send his
premium monthly unless other arrangements are mutually agreed to.
c. Retirement. Employee may take distribution of his
deferrals to the 401k Plan after May 1, 2009.
d. Withholding. All payments hereunder will be subject to
applicable withholding.
3
4. Employer will
pay to Employee any amount of salary deferred from March 8,
2009 through April 19, 2009 on June 30, 2009 as previously agreed by
the parties. See Attachment 1.
5. 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.
6. 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 2.
7. Employee
further agrees to assist in a smooth transition, to not be disruptive, and to
cooperate with Employer concerning this change in employment status. Employer agrees not to disparage or portray
Employee in any negative light whatsoever.
8. Employee will
return on or before April 17, 2009, keys, entry card, and other Company
property, if any, in his possession.
Mobile phone will be returned on April 22, 2009.
9. Employee
understands and agrees that the provisions of this Agreement and the requirement
that the Agreement 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.
10. Employee does
not waive any rights or claims that may arise after the effective date of this Agreement.
4
11. Employee agrees
that prior to June 30, 2009 he will not, without the prior written consent
of the Company, (a) represent, approach, solicit, hire or otherwise deal
with, directly or indirectly, any customer or 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 alcohol
business (“Business”) or (b) employ or retain or solicit for employment or
retention by any other person or entity, any employee of the Employer. Employee
hereby acknowledges that the remedies at law of the Employer for any breach of
Employee’s obligations contained in this Section would be inadequate and
the Employer shall be entitled to injunctive relief or any other equitable
relief for any violation hereof and Employee, in any equitable proceeding,
agrees not to claim that a remedy at law is available to the Employer.
12. Employer hereby
advises Employee in writing to consult with an attorney prior to executing this
Agreement, and Employee has been given a period of at least 21 days within
which to consider this Agreement, but Employee may accept or reject its terms, if
he chooses, at any time prior to the expiration of the 21 day period
(05/08/09). For a period of seven days
following the signing of this Agreement, Employee may revoke the Agreement and
the Agreement shall not become effective or enforceable until the revocation
period has expired.
13. Employee
certifies that all transactions reportable under Section 16 of the
Securities Exchange Act of 1934, as amended, by him in Employer’s stock prior
to the date hereof have been reported.
14. Employee
acknowledges and agrees that no promise or agreement not expressed in this
Agreement has been made; that this Agreement is not executed in
5
reliance upon any statement or representation made by Employer or by
any person employed by or representing Employer other than the statements
contained in the Agreement itself; that the consideration recited above is the
sole and only consideration for this Agreement; and that the terms of this
Agreement are contractual and not mere recitals.
|
Date:
5/7/09
|
/s/
Robert Zonneveld
|
|
|
Robert
Zonneveld
|
|
|
|
|
|
/s/
David E. Rindom
|
|
|
Witness
|
|
|
|
|
Date:
5/7/09
|
/s/
David E. Rindom
|
|
|
Authorized
Officer
|
|
|
MGP
Ingredients, Inc.
|
6
Attachment 1
AGREEMENT
THIS AGREEMENT, made and entered into this 23rd day of February, 2009, by and between Robert Zonneveld (the “Executive”) and MGP
Ingredients, Inc. (the “Company”).
WITNESSETH:
WHEREAS, the Executive is employed by the
Company as one of the Company’s principal executives.
WHEREAS, the Company, because of current
economic circumstances, has need for additional liquidity by the reduction of
expenses, and the Executive is willing to assist the Company in dealing with
short-term liquidity issues by agreeing to a short-term base salary adjustment
agreement.
NOW, THEREFORE, the parties here to agree as
follows:
1. The Executive agrees that the Executive’s base
salary, for the period commencing March 2, 2009, and ending as of June 26,
2009, may be temporarily adjusted by reducing the Executive’s per-pay-period
base salary from $3,750.00 to $1,875.00 (the “Adjustment Amount”).
2. For the period beginning July 1, 2009, the
Adjustment Amount shall no longer apply in a temporary reduction of the
Executive’s base salary.
3. The Company shall pay to the Executive in a lump sum
the cumulative amount of the Adjustment Amount, less applicable taxes, on June 30,
2009.
This Agreement executed as of the day and
year first above written.
|
|
/s/
Robert Zonneveld
|
|
|
Robert
Zonneveld
|
|
|
Executive
|
|
|
|
|
|
|
|
|
MGP
INGREDIENTS, INC.
|
|
|
|
|
|
|
|
|
By:
|
/s/
Timothy Newkirk
|
|
|
Title:
|
CEO,
President
|
7
Attachment 2
Verification of Receipt
My signature below
certifies that I have received, read and understand MGP Ingredients, Inc.
documents as follows:
· Code of Conduct
· Acknowledgement Of and Agreement With
Respect To Ongoing Confidentiality Obligations
|
|
Robert Zonneveld
|
|
|
|
|
Print Employee Name
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Robert T. Zonneveld
|
|
|
8/8/2008
|
|
|
Employee Signature
|
|
|
Date
|
|
|
|
|
|
|
8