SEPARATION AGREEMENT
This SEPARATION AGREEMENT is made and
entered into this 31st day of August 2005,
by and among Terex Corporation and Terex
Financial Services, Inc. (collectively,
the "Company") and Joseph Apuzzo
(Executive").
1. Resignation from
Employment
----------------------------
Executive
resigns from his
employment as of the end of the business day on
August 31, 2005
(the "Termination Date").
2. Termination Payment and
Benefits
--------------------------------
Executive
hereby agrees to accept, as full and final consideration for
Executive's
promises, obligations and release set forth herein, and in
settlement
of any and all
claims as particularly set forth below, the
following:
(a) Severance Payments -- The Company
shall pay Executive
Severance equal
to seventy-eight (78)
week(s) (the "Severance Period") salary. The
Severance shall be
calculated on Executive's current base salary and
shall be paid in regular installments in accordance with the normal
payroll processing.
Company shall continue to withhold for income and
other applicable
taxes, or other amounts.
(b) Medical Benefits - Medical, Dental, and Vision benefits cease as
of
the end of the month of separation. All other benefits will end on
the
Termination Date.
If Executive is currently enrolled in Medical,
Dental, or Vision
benefits and enrolls in COBRA for Medical, Dental,
and/or Vision
benefits, the Company agrees to contribute an amount
equal to the Employer's current contribution toward COBRA on behalf
of
Executive for the
duration of the
Severance Period (the
"Company's
Cobra Continuation").
(c) Vacation Pay - Executive shall be paid a lump-sum
amount for unused
and accrued vacation time to which Executive is entitled.
(d) Automobile - During the Severance
Period, Employee may continue to use
the 2003 Cadillac Seville, VIN 1G6KY54943U253202, which is the
automobile leased
by the Company for and provided to him as an
employee. The Company
shall continue to pay for insurance premiums on
the automobile
and the cost of
maintenance.
The Company shall
give
Executive 30 days
notice in the event of any change in level of
insurance coverage.
The Company shall not pay mileage, gas, moving or
other violations
or any other incidental expenses, unless such
expenses are incurred in the course of performing services requested
by the Company. The
Employee represents that he will maintain the
vehicle in good repair, shall use it only for its intended purpose
and
will not operate it negligently or recklessly. The Employee shall be
responsible for any
damage to the automobile that is not regular wear
and tear. The
Employee shall also indemnify and hold the Company
harmless for any
damages or injuries caused as a result of the
negligent or
reckless operation of this automobile during the
Severance Period,
including but not limited to out of pocket expenses
and attorneys fees and cost. Effective from the Termination
Date, the
Executive agrees
that all mileage on the vehicle is for personal
usage. On the
Termination
Date, Executive will report to Laurie
Yarrish the
odometer reading, the number of miles driven between
November 1, 2004 and the Termination Date and of those miles, how
many
were driven for personal use.
(e) Club Memberships - During the Severance Period, the Company shall
continue to pay (i) Executive's dues to Rolling Hills Country Club
and
(ii) Executive's
monthly membership
fees to the New York Sports Club
or reimburse
Executive for the monthly membership fees (but not
1 of 7
<PAGE>
initiation fees) to a
successor health club
of up to $80.00 a month,
inclusive of sales
tax. To receive reimbursement for the monthly
membership fees to a successor health club, Executive shall submit to
Stacey
Babson-Smith a
receipt from the successor health club
evidencing payment by
Executive. Executive
shall be responsible
for
all assessments
or other charges as a result of his country club
membership. Effective from the termination date, Executive agrees
that
the use of the country
club membership
shall be treated as
personal
use for tax purposes and confirms that the use of the New York
Sports
Club membership is for personal use.
(f) Legal Fees - The Company shall
reimburse Executive
for up to $9000.00
in legal fees
incurred by him in connection with the review and
execution of this Agreement
(g) Other Expenses - Upon submission of invoices, the Company shall
reimburse Executive
for his monthly usage costs for his mobile
telephone and blackberry.
(h) Outplacement Services - During the Severance
Period, Executive
shall
receive Executive
level outplacement services from either Right
Management Consultants
or Lee Hecht Harrison to assist with his
transition.
(i) Executive expressly agrees that
Executive shall not be entitled to and
shall not receive any other payments or benefits of any kind
from the
Company, including
without limitation any bonus payments or any right
to participate in the Company's 401(k) Plan, other than the benefits
expressly provided for
in this Paragraph 2 (collectively, "Termination
Payments"). Executive
further agrees that Executive would not receive
the moneys and/or
benefits specified in this Agreement except for
Executive's execution of this Agreement and Executive's fulfillment
of
the promises and obligations contained herein.
(j) Other Employment -On or about the 1st of each month during the
Severance Period,
Executive or his counsel, will notify Stacey
Babson-Smith via
e-mail or telephone if he has been employed,
including self
employment, or
retained as a contractor or consultant
in the preceding
month, including the income that he has
earned and
whether he has any plans in the current month to continue or begin
employment, including
self-employment,
or to act as a
consultant or
contractor including
that income that he
anticipates
earning. The
Company may require additional documentation from Executive to
confirm
employment or engagement as a contractor, including income earned.
The
Company will
suspend Termination Payments in any month in which
notification is not
made (or the requested documentation is not
received) and
will not reinstate Termination Payments until
notification
and/or
documentation has
been provided to Stacey
Babson-Smith.
(k) If Executive is employed on a full-time basis, including self
employment, or
re-employed
by the Company, or is retained as a
contractor or
consultant,
Executive
agrees
that Executive's
Termination Payments will be affected as follows:
(i) The Company's
obligation to provide
outplacement
services will
terminate;
(ii) The Company's Cobra Continuation payments will end on the first
day that Executive
becomes eligible to participate in medical
benefits;
(iii) Severance
Payments will be
reduced by the income earned by
Executive ("Reduced
Severance").
Reduced
Severance will be
effective on
the first day of Executive's employment or
engagement and
will be made on a going forward basis only.
Reduced Severance shall be calculated by subtracting Executive's
projected annualized
income/78 from
Severance/78
multiplied by
2 of 7
<PAGE>
the number of weeks remaining in the Severance Period. Where the
income earned by Executive varies during the Severance Period,
Reduced Severance may be adjusted by the Company.
(iv) Executive will return the automobile to the Company;
(v) The Company's obligation to pay club membership dues and
reimburse Executive
for his monthly mobile
phone and blackberry
costs will terminate;
(vi) Under the
circumstance where
Reduced Severance is $0.00 as a
result of the projected annualized income to be earned by
Executive, the
Severance Period shall
end and the Company shall
have no further obligation to Executive under this Agreement.
(vii) All Termination
Payments provided to Executive will be
deemed
adequate consideration
for this Agreement, including but not
limited to adequate
consideration for the
Waiver and Release of
Claims,
Cooperation with
Company, and Protection of Confidential
Information, Return
of Company Property, Non-Disparagement,
Non-solicitation
and Non-compete
covenants
set forth in
Paragraphs 3, 4, 5 and 7 below. The elimination or reduction of
Termination
Payments shall
not affect the adequacy of
consideration for this Agreement.
3. Cooperation with Company
------------------------
(a) In consideration for the Termination Payments, Executive agrees to
fully cooperate
with the Company in ensuring a smooth transition
following Executive's
departure.
Executive
expressly agrees to
cooperate with and make self available to the Company, as the Company
may reasonably
request under the
totality of the
circumstances, to
assist it in any matter, including but not limited to meeting with
Company Executives
or agents, pr
