EXHIBIT 10.2
AGREEMENT FOR MANAGEMENT SUCCESSION,
RESIGNATION AND SEVERANCE OF CEO, AND
OTHER MISCELLANEOUS MATTERS
NOW COMES Trans-Industries, Inc., a Delaware corporation (hereinafter
referred to as the "Company") and Xxxx X. Xxxxxx (hereinafter referred to as
"Xxxxxx"), on May 23, 2005, to enter into the following Agreement effective as
of the 16th day of March, 2005 as follows; to wit:
RECITALS
WHEREAS, Xxxxxx served as the Chief Executive Officer and Chairman of the
Board of Directors of the Company until his resignation on March 16, 2005;
WHEREAS, Xxxxxx has voluntarily resigned and/or retired as Chief Executive
Officer and Chairman of the Board;
WHEREAS, Xxxxxx and the Company both believe that it is in the Company's
best interest to provide for an orderly transfer of management from Xxxxxx to a
new Chief Executive Officer and Chairman of the Board including, but not limited
to, the appointment of Xx. Xxxxxxx Xxxxx ("Solon") as Chief Executive Officer
and Chairman of the Board effective upon the resignation of Xxxxxx, and subject
to approval of the Board of Directors in accordance with the Bylaws of the
Company;
WHEREAS, the Company, in recognition of Xxxxxx'x long-standing service
wishes to offer him a certain severance package;
WHEREAS, Xxxxxx is a plan participant of the Company's Profit Sharing
Plan, and the Company and Xxxxxx intend to provide for the orderly transfer of
Xxxxxx'x beneficial interest in the Profit Sharing Plan by roll over to his own
individual retirement account (XXX);
NOW THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the sufficiency of which are acknowledged to be adequate, it
is hereby agreed as follows; to wit:
I. RESIGNATION OF XXXX X. XXXXXX
Paragraph 1.1 Effective March 16, 2005, Xxxxxx has resigned as Chief Executive
Officer and Chairman of the Board of Directors of the Company and from the Board
of Directors and as an officer of Transmatic, Inc., Transign, Inc., The Xxxx
Company, and Vultron, Inc. (hereinafter referred to as "Subsidiary
Corporations").
Paragraph 1.2 Xxxxxx shall remain a member of the Board of Directors until his
earlier resignation or removal in accordance with the bylaws of the Company, or
otherwise.
Paragraph 1.3 Xxxxxx shall continue to act as Trustee of the Company's Profit
Sharing Plan until the earlier of November 16, 2005 or the termination of the
Profit Sharing Plan.
Paragraph 1.4 Xxxxxx and the Company shall execute the Severance Agreement and
Release of Claims attached hereto and incorporated herein as Exhibit "A".
II. MANAGEMENT SUCCESSION
Paragraph 2.1 Xxxxxx confirms his consent to the nomination and selection of
Xxxxxxx Xxxxx to be his successor as Chief Executive Officer and Chairman of the
Board by executing the Special Board Resolution of March 16, 2005 attached
hereto as Exhibit "B".
III. DISTRIBUTION OF XXXXXX'X PROFIT SHARING BENEFITS AND
AGREEMENT TO PURCHASE SHARES OF THE COMPANY
Paragraph 3.1 Xxxxxx directs, and the Company shall distribute, Xxxxxx'x vested
interest in the Profit Sharing Plan by utilization of the roll over process to
Xxxxxx'x XXX. The distribution or roll over shall occur as soon as commercially
reasonable 15 days following the filing of "Notification Form: Listing of
Additional Shares: with NASDAQ with the delivery of currency, check, cashier's
check or wire transfer. Xxxxxx shall execute and consent to any further
documentation including, but not limited to, a distribution form under the
Profit Sharing Plan, as requested by the Company in accordance with this
Agreement. If the Company takes any further action in connection with the
Notification Form, then distribution or roll over may be reasonably delayed by
the Company accordingly.
Paragraph 3.2 Xxxxxx shall use all cash proceeds or sums delivered to his XXX
pursuant to paragraph 3.1 above, less the sum of Fifty-Nine Thousand
($59,000.00) Dollars, to purchase common stock from the Company pursuant to the
terms and conditions set forth in the Stock Purchase Agreement attached hereto
as Exhibit "C", and incorporated herein.
Paragraph 3.3 If any provision of this Agreement is held to be invalid or
unenforceable, or a violation of or prohibited by the Employee Retirement Income
Security Act of 1974, 29 U.S.C. Section 1001, et seq. ("ERISA"), or the
regulations promulgated thereunder, then this Agreement shall be construed to
effectuate Article III of the Agreement in a manner consistent therewith.
IV. RIGHT OF FIRST REFUSAL AGREEMENT
Paragraph 4.1 Termination of Right of First Refusal Agreement As to Current
Common Stock of Xxxxxx and Xxxxxx. On March 4, 2004, Xxxxxx, the Company, and
Xxxxxx Xxxxxx entered into a Right of First Refusal Agreement with Xxxxx X.
Xxxxxx, Xx. Trustee under a certain Trust Agreement dated July 15, 1976, as
Amended. As a condition precedent to this Agreement, said Right of First Refusal
Agreement shall be amended and modified in the form attached hereto as Exhibit
"D".
Paragraph 4.2 Any Other Capital Stock of the Company Acquired by Xxxxxx. The
Common Stock, if any, acquired by Xxxxxx, pursuant to Article III, paragraphs
3.1 and 3.2, shall be
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subject to the terms and conditions of the amended Right of First Refusal
Agreement attached hereto as Exhibit "D".
V. STOCK RESTRICTION AGREEMENT
Paragraph 5.1 All common stock heretofore owned by Xxxxxx or later acquired by
Xxxxxx in any manner, including, without limitation, pursuant to Article III,
Paragraph 3.1 or 3.2 shall be subject to the Stock Restriction Agreement
attached hereto as Exhibit "E".
VI. DISCLOSURE
Paragraph 6.1 The Company shall use commercially reasonable efforts to have its
common stock listed on a national exchange or automated quotation system.
Paragraph 6.2 The Company has filed a current report on Form 8-K under the 1934
Act disclosing Xxxxxx'x resignation. In addition, the Company will make such
other filings and notices in the manner and time required by the SEC and each
national security exchange or automated quotation system upon which shares of
common stock are currently listed.
VII. THE CLOSING
Paragraph 7.1 Closing Actions. In connection with the execution and delivery of
this Agreement, the following actions shall occur (the "Closing Actions"),
simultaneously with or prior to the execution and delivery of this Agreement:
(a) The Company and Xxxxxx shall have executed and delivered the Severance
Agreement and Mutual Release of Claims in the form attached hereto as Exhibit
"A"; (b) Xxxxxx shall have consented to the nomination and selection of Xxxxxxx
Xxxxx to be his successor as Chief Executive Officer and Chairman of the Board
in the form attached hereto as Exhibit "B"; (c) the Amended Right of First
Refusal Agreement shall have been executed and delivered in the form attached
hereto as Exhibit "D"; and (d) the Stock Restriction Agreement shall have been
executed and delivered in the form attached hereto as Exhibit "E".
VIII. MISCELLANEOUS PROVISIONS
A. Counterparts; Signature Pages. This Agreement may be executed and
delivered in multiple counterparts, each of which will be deemed an original,
and all of which together will constitute one and the same instrument. This
Agreement may be executed and delivered by facsimile and with separate signature
pages with the same effect as though all parties had executed and delivered the
same original signature page.
B. Entire Agreement. This Agreement, and its Exhibits, constitute
the exclusive statement of the agreement between the parties concerning the
subject matter hereof, and supersede all other agreements, oral or written,
between the parties concerning such subject matter. All negotiations among the
parties hereto are superseded by this Agreement, and there are no
representations, warranties, promises, understandings or agreements, oral or
written, in
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relation to the subject matter hereof between the parties other than those
expressly set forth herein.
C. Amendments; Waivers. No amendment or modification of this
Agreement or any provision hereof, including the provisions of this sentence,
will be effective or enforceable as against a party hereto unless made in a
written instrument which specifically references this Agreement and which is
signed by the party against whom enforcement of such amendment or modification
is sought.
D. Binding Effect. This Agreement, when executed and delivered by
both parties hereto, will be binding upon and will inure to the benefit of each
of the parties and their respective successors, legal representatives and
assigns.
E. Third Parties. No provision of this Agreement is intended or may
be construed to confer on any person, other than the parties hereto and their
respective successors and assigns, any rights hereunder.
F. Interpretation. In each place where it is used in this Agreement,
the word "including" is intended and shall be construed to mean "including but
not limited to". The section and paragraph headings in this Agreement are
intended only for convenience of reference and shall be disregarded in
interpreting the provisions of this Agreement. Whenever the context requires in
this Agreement, the masculine gender includes the feminine or neuter, the neuter
gender includes the masculine or feminine, the singular number includes the
plural, and the plural number includes the singular.
G. Governing Law. This Agreement and the rights and obligations of
the parties hereunder will be governed by and construed in accordance with the
laws of the State of Michigan applicable to contracts made and to be performed
entirely within Michigan and without regard to the conflicts-of-laws provisions
thereof.
H. Severability. If any provision in this agreement is held to be
invalid or unenforceable, it shall be ineffective only to the extent of the
invalidity, without affecting or impairing the validity and enforceability of
the remainder of the provision or the remaining provisions of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
[SIGNATURE PAGE IMMEDIATELY FOLLOWING.]
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IN WITNESS WHEREOF, and intending to be legally bound, Company and Xxxxxx
have executed and delivered this Agreement as of the date first written above.
AGREED TO AND ACCEPTED BY:
/s/ Xxxx X. Xxxxxx
--------------------------------
XXXX X. XXXXXX
AGREED TO AND ACCEPTED BY
THE COMPANY
BY: /s/ Xxxxxxx Xxxxx
--------------------------
XXXXXXX XXXXX
TITLE: Chief Operating Officer
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LIST OF EXHIBITS
X. Xxxxxxxxx Agreement and Release of Claims
B. Special Board Resolution of March 16, 2005
C. Stock Purchase Agreement
D. Right of First Refusal Agreement, Amendment No. 3
E. Stock Restriction Agreement
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