FEDERAL SIGNAL CORPORATION RELEASE AND SEVERANCE AGREEMENT
EXHIBIT
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FEDERAL SIGNAL CORPORATION
RELEASE AND SEVERANCE AGREEMENT
This Release and Severance Agreement (the “Agreement”) will confirm the understanding of Federal
Signal Corporation and Xxxxxxxxx X. Xxxxxxx (“Employee”) in connection with the termination of
Employee’s employment with Federal Signal Corporation (the “Company”). We have reached Agreement
upon the following arrangements.
The effective date of Employee’s separation from service (as defined in Section 409A of the
Internal Revenue Code of 1986, as amended, and applicable regulations) with the Company without
cause will be December 30, 2008 (the “Separation Date”). The Company agrees to pay Employee the
following severance benefits (“Severance Benefits”) upon her separation from service without
“Cause” pursuant to the Company’s Executive General Severance Plan: (1) the sum of $541,920, which
is an amount equal to the sum of (i) the Employee’s Base Salary, and (ii) the Employee’s target
annual bonus; and (2) the sum of $203,220, which is an amount equal to the Employee’s unpaid
prorated target annual bonus for the 2008 plan year; in each case, less any applicable
taxes including federal employment withholding taxes that are payable in connection with this
amount. In accordance with the Company’s Executive General Severance Plan, these amounts shall be
paid in a lump sum on or about January 7, 2009, assuming that Employee has executed and delivered
to the Company this Agreement on December 30, 2008.
In addition, the Company agrees to pay on Employee’s behalf up to $17,500 in executive outplacement
or executive coaching services to one or more firms chosen by Employee and acceptable to the
Company. Employee understands that as a condition of receiving these Severance Benefits under the
Company’s Executive General Severance Plan, the Employee is required to sign the general waiver and
release in the form included in this Agreement. No Severance Benefits will be paid to the Employee
until the release contained herein becomes irrevocable in accordance with its terms. Employee
further understands that any vacation pay or other wages due to Employee will be paid separately
with appropriate employment taxes withheld and the receipt of such wages is in no way contingent
upon the signing of this Agreement. Nothing herein shall change or have an effect on any wages,
pension, retirement or other employee benefits Employee may be entitled to under any Company
retirement or benefit programs. Any monies owed the Company by Employee may be deducted from the
monies and the Severance Benefits, in accordance with applicable law. The Severance Benefits shall
not be considered or counted as “compensation” for purposes of any of the Company’s welfare or
pension benefit plans which provide benefits based, in any part, on compensation.
The Company also agrees to continue any applicable welfare benefits of medical insurance, dental
insurance and group term life insurance (life insurance continues for Employee only) that Employee
receives for 18 months following the Separation Date at the same coverage level as were in effect
as of the Employee’s Separation Date at the rates charged by the Company under the Consolidated
Omnibus Budget Reconciliation Act of 1986, as amended (COBRA) (the “COBRA Rate”). Pursuant to the
terms of the Company’s Executive General Severance Plan, the Company will reimburse you on a
monthly basis for the difference between the COBRA Rate and the premium rate for these benefits as
is currently in effect for all employees. Employee will receive notification from and shall make
monthly COBRA premium payments to Xxxxxx Associates “Your Benefits Resource” in accordance with
Xxxxxx’x administrative procedures. If Employee fails to make COBRA payments,
Employee’s COBRA coverage will be cancelled. Employee must complete all necessary paperwork within
the prescribed time period in order to receive this benefit. Notwithstanding the foregoing, during
the eighteen (18) months the Company continues the welfare benefits at the active employee rate, in
the event the premium cost and/or level of coverage shall change for all employees of the Company,
the cost and or coverage level, likewise, shall change in a corresponding manner for Employee, with
a resultant change in reimbursement level under this paragraph.. In addition, the continuation of
these welfare benefits shall be discontinued prior to the end of the period described above if any
required premium is not paid in full on time, the employee becomes covered under another group
health plan, the employee becomes entitled to Medicare benefits (under Part A, Part B, or both), or
the company ceases to provide any group health plan for its employees. Continuation may also be
terminated for any reason the plan providing such coverage would terminate coverage of a
participant or an eligible dependent.
The Company makes this Agreement to avoid the cost of defending any possible lawsuit. Employee
acknowledges that by making this Agreement the Company does not admit that it has done anything
wrong. Employee understands that she has a period of twenty one (21) days to review and consider
this Agreement before signing it. She may use as much of this 21-day period as she wishes in
making her decision. Employee further acknowledges that she may revoke the signed Agreement within
seven (7) days after its signing. Any such revocation must be in writing and received by Xxxxxxxx
Xxxxxxx in the Legal Department at Federal Signal Corporation in Oak Brook, Illinois within the
seven (7) day period. Payment of the Severance Benefits described above will only me paid after
this Agreement becomes binding which takes place when the revocation period runs out seven (7) days
after the date of Employee’s signature.
Employee is strongly encouraged to consult with an attorney before signing this Agreement, however,
whether she does so or not is her decision. Employee acknowledges that she has been advised that
she should be represented by an attorney throughout the negotiation of the terms of this Agreement.
As further consideration of the Severance Benefits described above, Employee agrees to the
following terms and conditions:
1. General Release. Employee, on behalf of herself and her heirs, executors,
administrators, attorneys and assigns, hereby waives, releases and forever discharges the Company
and its subsidiaries, divisions and affiliates, whether direct or indirect, its and their joint
ventures and joint venturers (including its and their respective directors, officers, employees,
shareholders, partners and agents, past, present, and future), and each of its and their respective
successors and assigns (hereinafter collectively referred to as “Releasees”), from any and all
known or unknown actions, causes of action, claims or liabilities of any kind which have been or
could be asserted against the Releasees arising out of or related to Employee’s employment with
and/or separation from employment with the Company and/or any of the other Releasees and/or any
other occurrence up to and including the date that Employee signs this Agreement, including but not
limited to:
| (a) | claims, actions, causes of action or liabilities arising under Title VII of the Civil Rights Act, as amended, the Civil Rights Act of 1871, the Civil Rights Act of 1991, the Age Discrimination in Employment Act, as amended (“ADEA”), the |
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| Employee Retirement Income Security Act, as amended, the Rehabilitation Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act (to the extent permitted by law), the Vietnam Era Veterans Readjustment Assistance Act, the Xxxxxxxx-Xxxxx Act of 2002, and/or any other federal, state, municipal, or local employment discrimination statutes (including, but not limited to, claims based on age, sex, attainment of benefit plan rights, race, religion, national origin, marital status, sexual orientation, ancestry, harassment, parental status, handicap, disability, retaliation, and veteran status); and/or | |||
| (b) | claims, actions, causes of action or liabilities arising under any other federal, state, municipal, or local statute, law, ordinance or regulation; and/or | ||
| (c) | any other claim whatsoever including, but not limited to, claims for severance pay under any voluntary or involuntary severance/separation plan, policy or program maintained by the Releasees, claims for attorney’s fees, claims based upon breach of contract, wrongful termination, defamation, intentional infliction of emotional distress, tort, personal injury, invasion of privacy, violation of public policy, negligence and/or any other common law, statutory or other claim whatsoever arising out of or relating to her employment with and/or separation from employment with the Company and/or any of the other Releasees. |
Employee understands and agrees that she is releasing the Company from any and all claims by which
she is giving up the opportunity to recover any compensation, damages, or any other form of relief
in any proceeding brought by her or on her behalf. Notwithstanding the foregoing, this Agreement
is not intended to operate as a waiver of any retirement or pension benefits that are vested, the
eligibility and entitlement to which shall be governed by the terms of the applicable plan. Nor
shall this Agreement operate to waive or bar any claim or right which — by express or unequivocal
terms of law — may not under any circumstances be waived or barred. Moreover, this Agreement
shall not operate to waive rights, causes of action or claims under the ADEA if those rights,
causes of action or claims arise after the date Employee signs this Agreement. Nor shall this
Agreement preclude Employee from challenging the validity of the Agreement under the ADEA.
2. Covenant Not to Xxx. Except for those claims, causes of action or rights explicitly
excluded from release in Paragraph 1 above, Employee agrees that she will never file or accept
anything of value from a lawsuit concerning any claim, issue, or matter relating to or arising out
of employment with the Company, the cessation of employment, the compensation or benefits payable
in connection with employment or termination of employment, or any other interaction with the
Company prior to the parties’ execution of this Agreement. Should Employee violate any aspect of
this Paragraph, Employee agrees: (a) that the lawsuit is null and void, and must be summarily
withdrawn and/or dismissed; (b) to pay all costs, expenses, and damages incurred by the Company in
responding to or as a result of any lawsuit brought by Employee that breaches this Agreement,
including reasonable attorneys’ fees; (c) to pay all costs and expenses incurred by the Company in
seeking enforcement of this Agreement, including reasonable attorneys’ fees; and (d) to return the
Severance Benefits paid pursuant to this Agreement — save $500 — within fourteen (14) days of
written demand by the Company. In the event this reimbursement
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provision is triggered,
Employee agrees that the remaining provisions of this Agreement shall remain in full force and
effect.
3. Further Release and Acknowledgment. To the extent permitted by law, Employee further
waives her right to any monetary recovery should any federal, state, or local administrative agency
pursue any claims on her behalf arising out of or related to her employment with and/or separation
from employment with the Company and/or any of the other Releasees. Employee also acknowledges
that she has not suffered any on-the-job injury for which she has not already filed a claim.
Employee acknowledges and agrees that the Company’s provision of the Severance Benefits to her and
her signing of the Agreement does not in any way indicate that Employee has any viable claims
against the Company or that the Company has or admits any liability to Employee whatsoever.
4. No Reinstatement. To the extent permitted by law, Employee further waives, releases,
and discharges Releasees from any reinstatement rights which she has or could have.
5. Non-Disparagement, Confidentiality, Cooperation, Non-Competition and Non-Solicitation.
Employee will not make any legally impermissible statements or representations that disparage,
demean, or impugn the Company, including without limitation any legally impermissible statements
impugning the personal or professional character of any current or former director, officer,
employee or consultant for the Company. The Company will not make any legally impermissible
statements or representations that disparage, demean, or impugn the Employee, including without
limitation any legally impermissible statements impugning the personal or professional character of
the Employee.
Employee agrees from and after the Separation Date to keep strictly confidential the existence and
terms of this Agreement, and further agrees that she will not disclose them to any person or
entity, other than to her immediate family, her attorney, and her financial advisor, or except as
may be required by law.
Employee acknowledges that after her Separation Date, she shall not represent herself to be an
employee of the Company nor take any action which may bind the Company with regard to any customer,
supplier, vendor or any other party with whom Employee has had contact while performing her duties
as an employee or consultant of the Company.
Employee further agrees that for a period of one (1) year following Employee’s Separation Date,
Employee will not, without the prior written consent of the Company, engage directly or indirectly
(as an employee, consultant, independent contractor, officer, or in any other capacity) in any
business or enterprise which is in competition with the Company or its successors or assigns. A
business or enterprise will be deemed to be in competition if it is engaged in any significant
business activity of the Company or its subsidiaries within the United States of America.
For a one (1) year period following the Separation Date, Employee further agrees that she will not,
directly or indirectly, hire away or participate or assist in the hiring away of any person
employed by the Company or its affiliates on the Separation Date and she will not solicit nor
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encourage any person employed by the Company or its affiliates on or after the Separation Date to
leave the employ of the Company or its affiliates.
Employee further agrees from and after the Separation Date to make herself available to the Company
and its legal counsel to provide reasonable cooperation and assistance to the Company with respect
to areas and matters in which Employee was involved during her employment, including any threatened
or actual investigation, regulatory matter and/or litigation concerning the Company, and to provide
to the Company, if requested, information and counsel relating to ongoing matters of interest to
the Company. To the extent that the Company requests such cooperation and assistance of Employee,
the Company will compensate Employee at the rate of $250 per hour for the time spent by Employee in
rendering such cooperation and assistance. The Company will take into consideration Employee’s
personal and business commitments, will give Employee as much advance notice as reasonably
possible, and ask that Employee be available at such time or times as are reasonably convenient to
Employee and the Company. The Company also agrees to reimburse Employee for the actual
out-of-pocket expenses Employee incurs as a result of her complying with this provision, subject to
Employee’s submission to the Company of documentation substantiating such expenses as the Company
may require and as is consistent with the documentation necessary and required for reimbursement of
business expenses generally by the Company.
Proprietary information, confidential business information and trade secrets (hereinafter
collectively “Confidential Information”) which became known to Employee as an employee of the
Company remains the property of the Company. Such Confidential Information includes, but is not
limited to, materials, records, books, products, business plans, business proposals, software,
personnel information and data of the Company and its affiliates and its customers, but excludes
information which is generally known to the public or becomes known except through Employee’s
actions. Employee agrees from and after today that she will not at any time, directly or
indirectly, disclose Confidential Information to any third party or otherwise use such Confidential
Information for Employee’s own benefit or the benefit of others. Also, Employee acknowledges that
she remains bound by the terms and conditions of the applicable provisions of the Company’s Code of
Business Conduct.
6. Consequences of Breach of Non-Disparagement, Confidentiality, Cooperation, Non-Competition
and Non-Solicitation Provisions. Employee acknowledges that the provisions of Paragraph 5 are
reasonable and not unduly restrictive of her rights as an individual and warrants that as of the
date Employee signs this Agreement, Employee has not breached any of the provisions of Paragraph 5.
Employee further acknowledges that in the event that she breaches any of the provisions of
Paragraph 5, such breach will result in immediate and irreparable harm to the business and goodwill
of the Company and that damages, if any, and remedies at law for such breach would be inadequate.
The Company shall be entitled to apply without bond for an injunction to restrain such breach and
for such further relief as the courts may deem just and proper. In addition, the Company shall not
be obligated to continue the availability or payment of Severance Benefits to Employee, and
Employee shall be obligated to pay to the Company its costs and expenses in enforcing the Company’s
non-disparagement, confidentiality, cooperation, non-competition, non-solicitation
provisions of this Agreement and the provisions of Paragraph 5 above (including court costs,
expenses and reasonable legal fees).
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7. Company Property/Expenses. Employee agrees to promptly return to the Company (as soon
as practicable following the Separation Date) all Company property (except for Employee’s
Blackberry and lap tap computer, which Employee shall retain for her own personal use), including,
but not limited to, Company car, information technology equipment (except the Blackberry and lap
top computer), documents and records and other physical or personal property of the Company in
Employee’s possession or control, and agrees not to keep, transfer or use copies or excerpts of the
foregoing items. Employee agrees that all business expenses for which she is entitled to
reimbursement are documented and submitted for approval on a timely basis and any final expenses
are submitted within ten (10) days after the Separation Date.
8. Reservation of Rights to Indemnification and Director and Officer Liability Insurance for
Actions Taken or Omitted while Employee was a Director or Executive Officer. Employee’s right
to indemnification to the fullest extent permitted by Delaware General Corporation Law and the
Company’s Certificate of Incorporation and By-Laws for expenses (including attorney’s fees and
disbursements), judgments, fines and amounts paid in settlement actually and reasonably incurred by
Employee in connection with any proceeding arising by reason of acts taken or omissions to act
occurring while Employee was an executive officer of the Company or an executive officer or
director of any of the Company’s subsidiaries, shall continue unabridged after the Separation Date.
In addition, Employee shall be entitled to make claim under any director and officer liability
insurance coverage that the Company may have available from time to time for actions or omissions
to act by Employee while Employee while Employee was an executive officer of the Company or an
executive officer or director of any of the Company’s subsidiaries.
9. Time to Consider Agreement. Employee acknowledges that she has been given at least
twenty-one (21) days to consider this Agreement thoroughly and she was encouraged to consult with
her personal attorney at her own expense, if desired, before signing below. She further agrees
that any changes made to this Agreement will not restart the running of the 21-day period
referenced herein.
10. Time to Revoke Agreement. Employee understands that she may revoke this Agreement
within seven (7) days after its signing and that any revocation must be made in writing and
submitted within such seven day period to Xxxxxxxx Xxxxxxx, General Counsel, Federal Signal
Corporation, 0000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxxx, XX 00000. Employee further
understands that if she revokes this Agreement, she shall not receive the Severance Benefits.
11. Consideration. Employee also understands that the Severance Benefits which she will
receive in exchange for signing and not later revoking this Agreement are in addition to anything
of value to which he/she is already entitled.
12. RELEASE INCLUDES UNKNOWN CLAIMS. EMPLOYEE FURTHER UNDERSTANDS THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS, EXCEPT FOR CLAIMS FOR INDEMNIFICATION UNDER PARAGRAPH 8 OF THIS AGREEMENT.
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13. Severability. Employee acknowledges and agrees that if any provision of this Agreement
is found, held or deemed by a court of competent jurisdiction to be void, unlawful or unenforceable
under any applicable statute or controlling law, the remainder of this Agreement shall continue in
full force and effect.
14. Governing Law. This Agreement is deemed made and entered into in the State of
Illinois, and in all respects shall be interpreted, enforced and governed under applicable federal
law and in the event reference shall be made to State law the internal laws of the State of
Illinois shall apply, without reference to its conflict of law provisions. Any dispute under this
Agreement shall be adjudicated by a court of competent jurisdiction in the State of Illinois.
Notwithstanding the foregoing, in accordance with Article 6.2 of the Executive General Severance
Plan dated October 2008 (the “Plan”), the Parties shall have the right and option (in lieu of
litigation) to have any dispute or controversy arising under or in connection with the Plan settled
by arbitration, subject to the limitations set forth in Article 6.2.
15. Knowing And Voluntary Waiver and Release. Employee further acknowledges and agrees
that she has carefully read and fully understands all of the provisions of this Agreement and that
she voluntarily enters into this Agreement by signing below. Employee is encouraged to consult
with an attorney of her choice at her own expense prior to signing this Agreement.
16. General Matters. Employee acknowledges and agrees that in signing this Agreement she
does not rely and has not relied on any representation or statement by the Company or by its
employees, agents, representatives, or attorneys with regard to the subject matter, basis or effect
of this Agreement.
The language of all parts of this Agreement shall be construed according to its fair meaning,
and not strictly for or against either party. The provisions of this Agreement shall survive any
termination of this Agreement when necessary to effect the intent and terms of this Agreement
expressed herein.
No modification of any provision of this Agreement shall be effective unless made in writing
and signed by Employee and a duly authorized senior executive of the Company. This Agreement shall
not be assignable by Employee.
| December 30, 0000 |
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XXXXX XX XXXXXXXX
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COUNTY OF
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The undersigned, notary public in and for the above county and state, certifies that Xxxxxxxxx X.
Xxxxxxx, known to me to be the same person whose name is subscribed to the foregoing Release and
Severance Agreement, appeared before me in person and acknowledged signing and delivering the
instrument as her free and voluntary act, for the uses and purposes therein set forth.
Dated: December 30, 2008
Date Commission Expires: |
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