Exhibit 10.5
RETIREMENT AGREEMENT AND
GENERAL RELEASE
This Retirement Agreement and
General Release (“ Agreement ”) is entered into
by and between Leslie J. Jezuit (“ Jezuit ”), an
individual, and Quixote Corporation (“ Quixote
”), a Delaware corporation with its principal place of
business in Chicago, Illinois.
AGREEMENT
1.
Change in Employment . Jezuit shall resign his position as
Quixote’s Chief Executive Officer and President effective
December 31, 2008. From January 1, 2009 through
June 30, 2009 (the “ Transition Period ”),
Jezuit shall remain employed as an officer of Quixote in his
position as the Chairman of Quixote’s Board of Directors.
Effective June 30, 2009, Jezuit shall retire and resign his
employment with Quixote (the “ Separation Date
”). Following the Separation Date, Jezuit shall continue to
serve as a Director for the remainder of his term, and, if so
elected by the Board of Directors, shall continue as the Chairman
of the Board, but not as an employee of Quixote.
2.
Transition Period Compensation .
(a)
Jezuit acknowledges receipt of all compensation, except accrued but
unused vacation time, due from Quixote through the payroll period
immediately prior to the date he signed this Agreement. Jezuit
acknowledges that he will receive all owed accrued but unused
vacation time on the first payroll date following December 31,
2008.
(b)
During the Transition Period, Jezuit’s annual base salary
shall be One Hundred Twenty Thousand and 00/100 Dollars
($120,000.00), payable at a rate of $10,000 per month in accordance
with Quixote’s payroll schedule in equal installments in
accord with Quixote’s payroll schedule.
(c)
During the Transition Period, Jezuit shall be entitled to
participate in Quixote’s employee benefits programs at the
level applicable to a full-time employee
3.
Separation Benefits : Subject to the provisions of this
Agreement and if Jezuit does not revoke his acceptance of this
Agreement, Quixote will provide Jezuit with the following
separation benefits (the “ Separation Benefits
”):
(a)
On December 30, 2008, Quixote shall pay Jezuit a single
lump sum payment of Six Hundred and Ninety-Two Thousand Five
Hundred and 00/100 Dollars ($692,500.00), less required tax
withholding.
(b)
If on or before June 30, 2009, Jezuit executes and delivers,
and does not revoke, the Agreement attached as Schedule 1 to this
Agreement, makes a timely election for COBRA health insurance
continuation benefits and remains eligible for COBRA health
insurance continuation benefits, then commencing on July 1,
2009, Quixote shall
provide the first eighteen (18)
months of the COBRA health insurance continuation for Jezuit
without cost.
Jezuit acknowledges that the Separation Benefits
exceed the amount to which Jezuit would be entitled in the absence
of the Agreement. Jezuit shall bear sole responsibility of all
taxes associated with the payment of the Separation Benefits;
provided that the Separation Benefits shall be subject to
applicable income tax and FICA withholding.
4.
Consideration . Jezuit acknowledges that the Separation
Benefits constitute a substantial economic benefit to Jezuit, and
that they constitute good and valuable consideration for the
various commitments undertaken by Jezuit in this
Agreement.
5.
Parties Released . For purposes of this Agreement, the term
“ Releasees ” means Quixote, its past and
present parents, subsidiaries, divisions, and affiliated entities;
their respective predecessors, successors, assigns, benefit plans,
and plan administrators; and their respective past and present
shareholders, members, partners, directors, managers, trustees,
officers, employees, agents, independent contractors, attorneys and
insurers.
6.
General Release . Jezuit, for and on behalf of himself and
each of his personal and legal representatives, heirs, devisees,
executors, successors and assigns, hereby acknowledges full and
complete satisfaction of, and fully and forever waives, releases,
acquits, and discharges Releasees from any and all claims, causes
of action, demands, liabilities, damages, obligations, and debts
(collectively referred to as “ Claims ”), of
every kind and nature, whether known or unknown, suspected or
unsuspected, or fixed or contingent, which Jezuit holds as of the
date Jezuit signs this Agreement, or at any time previously held
against Releasees, or any of them, arising out of any matter
whatsoever (with the exception of breaches of this Agreement).
Quixote, on behalf of itself and each of the Releasees, hereby
acknowledges full and complete satisfaction of, and fully and
forever waives, releases, acquits, and discharges Jezuit from any
and all Claims of every kind and nature, whether known or unknown,
suspected or unsuspected, or fixed or contingent, which any of the
Releasees holds as of the date Quixote signs this Agreement, or at
any time previously held against Jezuit, arising out of any matter
whatsoever (with the exception of breaches of this Agreement, or
matters involving fraud or criminal activity).This General Release
specifically includes, but is not limited to, any and all
Claims:
(a)
Arising out of or in any way related to Jezuit’s employment
with Quixote or the termination of his employment;
(b)
Arising out of or in any way related to any contract or agreement
between Jezuit and Quixote;
(c)
Arising under or based on the Equal Pay Act of 1963; Title VII of
the Civil Rights Act of 1964, as amended; Section 1981 of the
Civil Rights Act of 1866; the Americans With Disabilities Act of
1990; the Family and Medical Leave Act of 1993; the Fair Labor
Standards Act of 1938; the National Labor Relations Act; the Worker
Adjustment and Retraining Notification Act of 1988; Employee
Retirement Income Security Act of 1974 (ERISA) (excepting claims
for vested benefits, if any, to which Jezuit is legally entitled
thereunder); the Illinois Constitution; the Illinois Wage
Payment
2
and Collection Act; the Illinois
Minimum Wage Law, the Illinois Human Rights Act; and the Illinois
Whistleblower Act;
(d)
Arising under or based on the Age Discrimination in Employment Act
of 1967 (ADEA), as amended by the Older Workers Benefit Protection
Act (OWBPA), and alleging a violation thereof based on any action
or failure to act by Releasees, or any of them, at any time prior
to the effective date of this Agreement; and
(e)
Arising out of or in any way related to any claim under a federal,
state, county or local constitutional provision, law, statute,
ordinance, judicial or administrative decision, order, policy or
regulation prohibiting employment discrimination, providing for the
payment of wages or benefits, providing for a paid or unpaid leave
of absence, otherwise creating rights or claims for employees,
including, but not limited to, any and all claims alleging breach
of public policy, whistleblowing, retaliation, the implied
obligation of good faith and fair dealing, any express or implied
oral or written contract; handbook; manual; policy statement or
employment practice, or alleging misrepresentation, defamation,
libel, slander, interference with contractual relations,
intentional or negligent infliction of emotional distress, invasion
of privacy, false imprisonment, assault, battery, fraud,
negligence, or wrongful discharge.
7.
Intended Scope of Release . It is the intention of the
parties and is fully understood and agreed by them that this
Agreement includes a General Release of all Claims (with the
exception of breaches of this Agreement and claims for vested
benefits, if any, to which Jezuit is legally entitled under ERISA),
which Jezuit holds or previously held against Releasees, or any of
them, or which any of the Releasees holds or previously held
against Jezuit, whether or not they are specifically referred to
herein. No reference herein to any specific claim, statute or
obligation is intended to limit the scope of this General Release
and, notwithstanding any such reference, this Agreement shall be
effective as a full and final bar to all Claims of every kind and
nature, whether known or unknown, suspected or unsuspected, or
fixed or contingent, released in this Agreement.
Notwithstanding the foregoing, nothing contained herein shall waive
or release any right that Jezuit may have to be indemnified by
Quixote against any claims arising from or relating to
Jezuit’s service as an officer, director and employee of
Quixote.
8.
Employee Waiver of Rights . As part of the foregoing General
Release, Jezuit is waiving all of his rights to any recovery,
compensation, or other legal, equitable or injunctive relief
(including, but not limited to, compensatory damages, liquidated
damages, punitive damages, back pay, front pay, attorneys’
fees, and reinstatement to employment), from the Releasees, or any
of them, in any administrative, arbitral, judicial or other action
brought by or on behalf of Jezuit in connection with any Claim
released in this Agreement.
9.
Covenant Not to Sue . In addition to all other obligations
contained in this Agreement, Jezuit agrees that he will not
initiate, bring or prosecute any suit or action against any of
Releasees in any federal, state,
