Exhibit 10 (f)
CHANGE OF CONTROL AGREEMENT BETWEEN
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ AND
QUIXOTE CORPORATION
THIS CHANGE OF CONTROL AGREEMENT, dated as of December 1, 1997 (the
"Agreement"), is by and between Quixote Corporation, a Delaware corporation
having its principal offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
("the Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an employee of the Company (the
"Employee").
WHEREAS, the Employee is presently serving as an employee and elected
officer of the Company; and
WHEREAS, the Board of Directors of the Company ("the Board") has
recognized and continues to recognize that the Employee's contribution to
the growth and success of the Company has been, and is expected to continue
to be, substantial and desires to assure the Company of the Employee's
continued employment by assuring him of fair treatment if that relationship
is terminated; and
WHEREAS, the Company and the Employee agree that, as a result of
various factors, it is desirable to enter into this Change of Control
Agreement; and
WHEREAS, the Company desires to retain the Employee's services and the
Employee is willing to continue his employment as an employee and elected
officer of the Company on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
1. Certain Defined Terms.
(a)"Change of Control", as used herein, shall mean a change in control
of a nature that would be required to be reported in response to Item 6(e)
of Schedule 14A of Regulation 14A promulgated under the Securities Exchange
Act of ▇▇▇▇ ( ▇▇▇▇▇▇▇▇ ▇▇▇ ); provided that, without limitation, such a
change in control shall be deemed to have occurred if : (i) any person (as
that term is defined in Section 13(d) and Section 14(d) of the Exchange
Act) is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing twenty percent (20%) or more of the
combined voting power of the Company s then outstanding securities; or (ii)
during any period of two consecutive years, individuals who at the
beginning of such period constitute all members of the Board who are not
employed by the Company (the Outside Directors ) shall cease for any
reason to constitute at least a majority of the Outside Directors, unless
the election of each Outside Director, who was not an Outside Director at
the beginning of such period, was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the beginning
of such period; or, (iii) there shall be consummated (A) any consolidation
or merger of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of the Company s common
stock would be converted into cash, securities or other property, other
than a merger of the Company in which the holders of the Company s common
stock immediately prior to the merger have the same proportionate ownership
of common stock of the surviving corporation immediately after the merger,
or (B) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all, of the assets
of the Company, or, (iv) the stockholders of the Company approve a plan or
proposal for the liquidation or dissolution of the Company.
(b) "Constructive Termination", as used herein, shall mean any one or
more of the following occurrences within three (3) years following the
Effective Date of a Change of Control: (i) the Employee is assigned any
duties inconsistent in any material adverse respect with the Employee's
position, authority, duties or responsibilities immediately prior to the
Effective Date of the Change of Control referred to above, or any other
action by the Company which results in a diminution in any material adverse
respect of the Employee's position, authority, duties or responsibilities
as the same existed immediately prior to the Effective Date of the Change
of Control referred to above, (ii) the Employee's total compensation (when
taken as a whole including fringe benefits and the manner of determining
incentive compensation) is changed in a material adverse way or the Company
fails to obtain the assumption of the obligation to perform this Agreement
by any successor as contemplated in Section 8 hereof, or (iii) the Company
requires the Employee to be based outside of a radius of thirty (30) miles
from the location of the Company's present corporate offices (except for
required travel on Company business to an extent substantially consistent
with the Employee's business travel obligations immediately prior to such
change in control); provided, however, that none of the foregoing shall be
a Constructive Termination if any of the foregoing actions are taken by the
Company for Cause (as defined in subsection 1(d) hereof).
(c) "Effective Date", as used herein, shall mean the first date on
which a Change of Control (as defined in Section 1(a)) occurs.
(d) "Cause" For purposes of this Agreement, the Company shall have
"Cause" to terminate the Employee's employment upon (i) the willful failure
by the Employee to substantially perform his duties, other than such
failure resulting from the Employee's incapacity due to physical or mental
illness, (ii) the willful engaging by the Employee in gross misconduct
materially and demonstrably injurious to the Company or its subsidiaries or
(iii) the commission by the Employee of a crime which is a felony. For the
purpose of this subsection (d), no act, or the failure to act, on the
Employee's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his
action or omission was in the best interest of the Company or subsidiaries.
Notwithstanding the foregoing, the Employee shall not be deemed to have
been terminated for Cause under subsections (i), (ii) or (iii) of the first
sentence of this subsection (d), unless and until there shall have been
delivered to the Employee a copy of a resolution, duly adopted by the
affirmative vote of not less than two-thirds (2/3) of the entire membership
of the Company's Board of Directors at a meeting of the Board called and
held for that purpose (after reasonable notice to the Employee and an
opportunity for him, together with his counsel, to be heard before the
Board), finding that in the good faith opinion of the Board, the Employee
was guilty of conduct set forth above in clause (i), (ii) or (iii) of the
first sentence of this subsection (d) and specifying the particulars
thereto in detail.
(e) "Disability" For purposes of this Agreement, an Employee's
"Disability" shall occur if the Employee is absent from his duties as an
employee of the Company on a full-time basis for six (6) consecutive months
following a Change of Control of the Company and if he qualifies for long-
term disability under the Company's long-term disability insurance plan.
2. Termination. If the Employee is terminated for a reason other than
death, Disability, Cause or voluntary resignation not constituting a
Constructive Termination, or is subject to a Constructive Termination (a
Constructive Termination or termination for a reason other than death,
Disability, Cause or voluntary resignation not constituting a Constructive
Termination referred to herein as a "Termination"), within three (3) years
following the Effective Date of a Change of Control, the Employee will be
entitled to receive the benefits set forth below:
(a) Accelerated Vesting. If a Termination of the Employee occurs within
three (3) years following the Effective Date of a Change of Control, the
vesting of all rights listed on Exhibit A ("Rights") shall be accelerated
to the date on which the Employee is terminated or is subject to a
Constructive Termination.
(b) Salary Continuation. If a Termination of the Employee occurs within
three (3) years following the Effective Date of a Change of Control:
(i) The Employee shall have a right to receive his full base salary
through the date of Termination at the rate in effect at the time
Termination occurs, and in lieu of any further salary payment to the
Employee for periods subsequent to the date of Termination, the Company
shall pay to the Employee in cash an amount equal to three (3) times the
sum of (A) the higher of the Employee's base salary at the date of
Termination or on the date when a Change of Control of the Company occurs
plus (B) the average of the bonus payment plus other incentive compensation
made to the Employee for the two (2) full fiscal years preceding the fiscal
year in which a Change of Control of the Company occurs. At the option of
the Employee, such payment shall be made in a lump sum not later than 5
days after the date of Termination or in substantially equal semimonthly
installments, commencing no later than the fifth day following the date of
Termination and continuing for a period of thirty-six (36) months following
the date of Termination. In the event (A) the Company shall fail to make
any payment to the Employee which is required under this subsection within
ten (10) days of the date that such payment is due and (B) such failure to
pay continues, following written notification by the Employee to the
Company of such failure to make payment, for more than seven (7) additional
days thereafter, all remaining installments or payments payable to the
Employee shall be accelerated and shall become immediately due and payable
by the Company, without any discounting to present value, with interest
accruing on any unpaid portion thereof at the rate of twelve percent (12%)
per annum.
(ii) The Company shall provide to Employee all benefits he was
entitled to immediately prior to the date of Termination during the Salary
Continuation Period, as defined below, including but not limited to all
group insurance plans in which the Employee was entitled to participate
immediately prior to the date of the Termination, provided that the
Employee's continued participation is possible under the terms of such
plans (as, for example, it may not possible if the Employee elects the lump
sum payment option described in subsection 2(b)(i) above), failing which
the Company shall arrange to provide the Employee with alternative benefits
and/or insurance substantially similar to those provided under the then
current benefit and insurance plans unless it is not commercially feasible
to do so. If the cost of providing such benefits is more than 150% of the
cost of providing such benefits for the Employee prior to the date of
Termination, then the parties agree that it shall be deemed not
commercially feasible to do so.
(iii) The Salary Continuation Period as used in this Section 2(b)
shall mean three (3) years from the date of a Termination of the Employee.
(c) Mitigation. The Employee shall not be required to mitigate the
amount of any payment provided for in subsection 2(b) by seeking other
employment or otherwise, nor shall the amount of any payment provided for
in subsection 2(b) be reduced by any compensation earned by the Employee as
a result of employment by another employer after the date of Termination,
or otherwise.
3. Rights Apply Only on Change of Control. The rights granted under
this Change of Control Agreement only apply upon a Change of Control and
subsequent Termination and supersede the severance or other similar rights
accruing upon a Change of Control and subsequent Termination under any
other agreement, including without limitation the Key Employee Severance
Agreement, dated as of February 17, 1989, as amended by and between the
Company and the Employee (the "Key Employee Severance Agreement").
4. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois applicable to
agreements made and to be performed in Illinois, without giving effect to
conflicts of law principles.
5. Headings. The section headings of this Agreement are for
reference only and are to be given no effect in the construction or
interpretation of this Agreement.
6. Severability. If any part or provision of this Agreement shall be
declared invalid or unenforceable by a court of competent jurisdiction,
said provision or part shall be ineffective to the extent of such
invalidity or unenforceability only, without in any way affecting the
remaining parts or provisions of this Agreement.
7. Waiver. Any party may waive compliance by another party with any
of the provisions of this Agreement. No waiver of any provision shall be
construed as a waiver of any other provision. Any waiver must be in
writing.
8. Binding Effect; Assignment. This Agreement shall be binding on and
inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights in any person or entity
(including any employee or person engaged by the Company in any capacity)
not a party to this Agreement. The Company will require any successor
(whether direct or indirect, by merger, purchase, consolidation or
otherwise) of the Company to make an express assumption of the obligations
hereunder and cause any successor (whether direct or indirect, by merger,
purchase, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to agree to perform all parts and
provisions under this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had
taken place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement
and shall entitle Employee to compensation from the Company in the same
amount and on the same terms as he would be entitled to hereunder if he is
subject to a Construction Termination, except for purposes of implementing
the foregoing, the date on which any such succession becomes effective
shall be deemed the date of Termination. As used in this Agreement,
Company shall mean the Company as hereinbefore defined and any successor
to the business and/or assets of the Company which executes and delivers
the agreement provided for in this section 8, or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of
law.
This Agreement and all rights of the Employee hereunder shall inure to
the benefit of, and be enforceable by the Employee s personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Employee should die after any
amounts shall become payable to him hereunder, all such amounts, unless
otherwise provided for herein, shall be paid in accordance with the terms
of this Agreement to the Employee s devisee, legatee or other designee or,
if there be no such devisee or other designee, to the Employee s estate.
9. Legal Fees. The Company shall pay, or reimburse the Employee for,
all legal fees and expenses incurred by the Employee as a result of any
Termination of his employment hereunder after a Change of Control of the
Company, including all such fees and expenses, if any, incurred contesting
or disputing in good faith any such Termination or in seeking to obtain or
enforce any right or benefit provided by this Agreement.
10. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration
in Chicago, Illinois in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however,
that the Employee shall be entitled to seek specific performance of his
right to be paid until the date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
11. Counterparts. This Agreement may be signed in any number of
counterparts and all such counterparts shall be read together and construed
as but one and the same document.
12. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered
personally, or sent by facsimile transmission, receipt confirmed, one day
after sent by recognized overnight courier, or five (5) days after deposit
in the United States mail, postage prepaid, registered or certified mail,
return receipt requested, to the parties at the following addresses (or to
such other address as a party may have specified by notice duly given to
the other party in accordance with this provision):
If to the Employee:
At the Employee's then current business or residence address as shown on
the records of the Company, with a copy to such other person as the
Employee may have specified by notice duly given to the Company in
accordance with this provision.
If to the Company:
Quixote Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
IN WITNESS WHEREOF the parties have executed this Agreement, in
triplicate, on the date first written above.
Quixote Corporation Employee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- -------------------------
By: Its Chief Executive Officer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
EXHIBIT A
All rights granted to Employee under the Company s plans including, but not
limited to the following:
1993 Long-Term Stock Ownership Plan
Incentive Savings Plan
CHANGE OF CONTROL AGREEMENT BETWEEN
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ AND
QUIXOTE CORPORATION
THIS CHANGE OF CONTROL AGREEMENT, dated as of December 1, 1997 (the
"Agreement"), is by and between Quixote Corporation, a Delaware corporation
having its principal offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
("the Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the "Employee").
WHEREAS, the Employee is presently serving as an employee and elected
officer of Energy Absorption Systems, Inc., a subsidiary of the Company;
and
WHEREAS, the Board of Directors of the Company ("the Board") has
recognized and continues to recognize that the Employee's contribution to
the growth and success of the Company has been, and is expected to continue
to be, substantial and desires to assure the Company of the Employee's
continued employment by assuring him of fair treatment if that relationship
is terminated; and
WHEREAS, the Company and the Employee agree that, as a result of
various factors, it is desirable to enter into this Change of Control
Agreement; and
WHEREAS, the Company desires to retain the Employee's services and the
Employee is willing to continue his employment as an employee and elected
officer of Energy Absorption Systems, Inc. on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. Certain Defined Terms.
(b) "Change of Control", as used herein, shall mean a change in
control of a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of ▇▇▇▇ ( ▇▇▇▇▇▇▇▇ ▇▇▇ ); provided that, without
limitation, such a change in control shall be deemed to have occurred if :
(i) any person (as that term is defined in Section 13(d) and Section 14(d)
of the Exchange Act) is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing twenty percent (20%)
or more of the combined voting power of the Company s then outstanding
securities; or (ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute all members of the Board who
are not employed by the Company (the Outside Directors ) shall cease for
any reason to constitute at least a majority of the Outside Directors,
unless the election of each Outside Director, who was not an Outside
Director at the beginning of such period, was approved by a vote of at
least two-thirds of the directors then still in office who were directors
at the beginning of such period; or, (iii) there shall be consummated (A)
any consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of the
Company s common stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of the
Company s common stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation
immediately after the merger, or (B) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all,
or substantially all, of the assets of the Company, or, (iv) the
stockholders of the Company approve a plan or proposal for the liquidation
or dissolution of the Company.
(b) "Constructive Termination", as used herein, shall mean any one or
more of the following occurrences within three (3) years following the
Effective Date of a Change of Control: (i) the Employee is assigned any
duties inconsistent in any material adverse respect with the Employee's
position, authority, duties or responsibilities immediately prior to the
Effective Date of the Change of Control referred to above, or any other
action by the Company which results in a diminution in any material adverse
respect of the Employee's position, authority, duties or responsibilities
as the same existed immediately prior to the Effective Date of the Change
of Control referred to above, (ii) the Employee's total compensation (when
taken as a whole including fringe benefits and the manner of determining
incentive compensation) is changed in a material adverse way or the Company
fails to obtain the assumption of the obligation to perform this Agreement
by any successor as contemplated in Section 8 hereof, or (iii) the Company
requires the Employee to be based outside of a radius of thirty (30) miles
from the location of the Company's present corporate offices (except for
required travel on Company business to an extent substantially consistent
with the Employee's business travel obligations immediately prior to such
change in control); provided, however, that none of the foregoing shall be
a Constructive Termination if any of the foregoing actions are taken by the
Company for Cause (as defined in subsection 1(d) hereof).
(c) "Effective Date", as used herein, shall mean the first date on
which a Change of Control (as defined in Section 1(a)) occurs.
(d) "Cause" For purposes of this Agreement, the Company shall have
"Cause" to terminate the Employee's employment upon (i) the willful failure
by the Employee to substantially perform his duties, other than such
failure resulting from the Employee's incapacity due to physical or mental
illness, (ii) the willful engaging by the Employee in gross misconduct
materially and demonstrably injurious to the Company or its subsidiaries or
(iii) the commission by the Employee of a crime which is a felony. For the
purpose of this subsection (d), no act, or the failure to act, on the
Employee's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his
action or omission was in the best interest of the Company or subsidiaries.
Notwithstanding the foregoing, the Employee shall not be deemed to have
been terminated for Cause under subsections (i), (ii) or (iii) of the first
sentence of this subsection (d), unless and until there shall have been
delivered to the Employee a copy of a resolution, duly adopted by the
affirmative vote of not less than two-thirds (2/3) of the entire membership
of the Company's Board of Directors at a meeting of the Board called and
held for that purpose (after reasonable notice to the Employee and an
opportunity for him, together with his counsel, to be heard before the
Board), finding that in the good faith opinion of the Board, the Employee
was guilty of conduct set forth above in clause (i), (ii) or (iii) of the
first sentence of this subsection (d) and specifying the particulars
thereto in detail.
(e) "Disability" For purposes of this Agreement, an Employee's
"Disability" shall occur if the Employee is absent from his duties as an
employee of the Company on a full-time basis for six (6) consecutive months
following a Change of Control of the Company and if he qualifies for long-
term disability under the Company's long-term disability insurance plan.
2.Termination. If the Employee is terminated for a reason other than
death, Disability, Cause or voluntary resignation not constituting a
Constructive Termination, or is subject to a Constructive Termination (a
Constructive Termination or termination for a reason other than death,
Disability, Cause or voluntary resignation not constituting a Constructive
Termination referred to herein as a "Termination"), within three (3) years
following the Effective Date of a Change of Control, the Employee will be
entitled to receive the benefits set forth below:
(a) Accelerated Vesting. If a Termination of the Employee occurs
within three (3) years following the Effective Date of a Change of Control,
the vesting of all rights listed on Exhibit A ("Rights") shall be
accelerated to the date on which the Employee is terminated or is subject
to a Constructive Termination.
(b) Salary Continuation. If a Termination of the Employee occurs
within three (3) years following the Effective Date of a Change of Control:
(i) The Employee shall have a right to receive his full base salary
through the date of Termination at the rate in effect at the time
Termination occurs, and in lieu of any further salary payment to the
Employee for periods subsequent to the date of Termination, the Company
shall pay to the Employee in cash an amount equal to three (3) times the
sum of (A) the higher of the Employee's base salary at the date of
Termination or on the date when a Change of Control of the Company occurs
plus (B) the average of the bonus payment plus other incentive compensation
made to the Employee for the two (2) full fiscal years preceding the fiscal
year in which a Change of Control of the Company occurs. At the option of
the Employee, such payment shall be made in a lump sum not later than 5
days after the date of Termination or in substantially equal semimonthly
installments, commencing no later than the fifth day following the date of
Termination and continuing for a period of thirty-six (36) months following
the date of Termination. In the event (A) the Company shall fail to make
any payment to the Employee which is required under this subsection within
ten (10) days of the date that such payment is due and (B) such failure to
pay continues, following written notification by the Employee to the
Company of such failure to make payment, for more than seven (7) additional
days thereafter, all remaining installments or payments payable to the
Employee shall be accelerated and shall become immediately due and payable
by the Company, without any discounting to present value, with interest
accruing on any unpaid portion thereof at the rate of twelve percent (12%)
per annum.
(ii) The Company shall provide to Employee all benefits he was
entitled to immediately prior to the date of Termination during the Salary
Continuation Period, as defined below, including but not limited to all
group insurance plans in which the Employee was entitled to participate
immediately prior to the date of the Termination, provided that the
Employee's continued participation is possible under the terms of such
plans (as, for example, it may not possible if the Employee elects the lump
sum payment option described in subsection 2(b)(i) above), failing which
the Company shall arrange to provide the Employee with alternative benefits
and/or insurance substantially similar to those provided under the then
current benefit and insurance plans unless it is not commercially feasible
to do so. If the cost of providing such benefits is more than 150% of the
cost of providing such benefits for the Employee prior to the date of
Termination, then the parties agree that it shall be deemed not
commercially feasible to do so.
(iii) The Salary Continuation Period as used in this Section 2(b)
shall mean three (3) years from the date of a Termination of the Employee.
(c) Mitigation. The Employee shall not be required to mitigate the
amount of any payment provided for in subsection 2(b) by seeking other
employment or otherwise, nor shall the amount of any payment provided for
in subsection 2(b) be reduced by any compensation earned by the Employee as
a result of employment by another employer after the date of Termination,
or otherwise.
3. Rights Apply Only on Change of Control. The rights granted under
this Change of Control Agreement only apply upon a Change of Control and
subsequent Termination and supersede the severance or other similar rights
accruing upon a Change of Control and subsequent Termination under any
other agreement, including without limitation the Key Employee Severance
Agreement, dated as of February 17, 1989, as amended, by and between the
Company and the Employee (the "Key Employee Severance Agreement").
4. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois applicable to
agreements made and to be performed in Illinois, without giving effect to
conflicts of law principles.
5. Headings. The section headings of this Agreement are for reference
only and are to be given no effect in the construction or interpretation of
this Agreement.
6. Severability. If any part or provision of this Agreement shall be
declared invalid or unenforceable by a court of competent jurisdiction,
said provision or part shall be ineffective to the extent of such
invalidity or unenforceability only, without in any way affecting the
remaining parts or provisions of this Agreement.
7. Waiver. Any party may waive compliance by another party with any
of the provisions of this Agreement. No waiver of any provision shall be
construed as a waiver of any other provision. Any waiver must be in
writing.
8. Binding Effect; Assignment. This Agreement shall be binding on and
inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights in any person or entity
(including any employee or person engaged by the Company in any capacity)
not a party to this Agreement. The Company will require any successor
(whether direct or indirect, by merger, purchase, consolidation or
otherwise) of the Company to make an express assumption of the obligations
hereunder and cause any successor (whether direct or indirect, by merger,
purchase, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to agree to perform all parts and
provisions under this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had
taken place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement
and shall entitle Employee to compensation from the Company in the same
amount and on the same terms as he would be entitled to hereunder if he is
subject to a Construction Termination, except for purposes of implementing
the foregoing, the date on which any such succession becomes effective
shall be deemed the date of Termination. As used in this Agreement,
Company shall mean the Company as hereinbefore defined and any successor
to the business and/or assets of the Company which executes and delivers
the agreement provided for in this section 8, or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of
law.
This Agreement and all rights of the Employee hereunder shall inure to
the benefit of, and be enforceable by the Employee s personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Employee should die after any
amounts shall become payable to him hereunder, all such amounts, unless
otherwise provided for herein, shall be paid in accordance with the terms
of this Agreement to the Employee s devisee, legatee or other designee or,
if there be no such devisee or other designee, to the Employee s estate.
9. Legal Fees. The Company shall pay, or reimburse the Employee for,
all legal fees and expenses incurred by the Employee as a result of any
Termination of his employment hereunder after a Change of Control of the
Company, including all such fees and expenses, if any, incurred contesting
or disputing in good faith any such Termination or in seeking to obtain or
enforce any right or benefit provided by this Agreement.
10. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration
in Chicago, Illinois in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however,
that the Employee shall be entitled to seek specific performance of his
right to be paid until the date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
11. Counterparts. This Agreement may be signed in any number of
counterparts and all such counterparts shall be read together and construed
as but one and the same document.
12. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered
personally, or sent by facsimile transmission, receipt confirmed, one day
after sent by recognized overnight courier, or five (5) days after deposit
in the United States mail, postage prepaid, registered or certified mail,
return receipt requested, to the parties at the following addresses (or to
such other address as a party may have specified by notice duly given to
the other party in accordance with this provision):
If to the Employee:
At the Employee's then current business or residence address as shown on
the records of the Company, with a copy to such other person as the
Employee may have specified by notice duly given to the Company in
accordance with this provision.
If to the Company:
Quixote Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
IN WITNESS WHEREOF the parties have executed this Agreement, in
triplicate, on the date first written above.
Quixote Corporation Employee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------- --------------------------
By: Its Chief Executive Officer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
EXHIBIT A
All rights granted to Employee under the Company s plans including, but not
limited to:
1993 Long-Term Stock Ownership Incentive Plan
Incentive Savings Plan
CHANGE OF CONTROL AGREEMENT BETWEEN
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND
QUIXOTE CORPORATION
THIS CHANGE OF CONTROL AGREEMENT, dated as of December 1, 1997 (the
"Agreement"), is by and between Quixote Corporation, a Delaware corporation
having its principal offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
("the Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the President of the Company (the
"Employee").
WHEREAS, the Employee is presently serving as an employee and elected
officer of the Company; and
WHEREAS, the Board of Directors of the Company ("the Board") has
recognized and continues to recognize that the Employee's contribution to
the growth and success of the Company has been, and is expected to continue
to be, substantial and desires to assure the Company of the Employee's
continued employment by assuring him of fair treatment if that relationship
is terminated; and
WHEREAS, the Company and the Employee agree that, as a result of
various factors, it is desirable to enter into this Change of Control
Agreement; and
WHEREAS, the Company desires to retain the Employee's services and the
Employee is willing to continue his employment as an employee and elected
officer of the Company on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. Certain Defined Terms.
(c) "Change of Control", as used herein, shall mean a change in control of
a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange
Act of ▇▇▇▇ ( ▇▇▇▇▇▇▇▇ ▇▇▇ ); provided that, without limitation, such a
change in control shall be deemed to have occurred if : (i) any person (as
that term is defined in Section 13(d) and Section 14(d) of the Exchange
Act) is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing twenty percent (20%) or more of the
combined voting power of the Company s then outstanding securities; or (ii)
during any period of two consecutive years, individuals who at the
beginning of such period constitute all members of the Board who are not
employed by the Company (the Outside Directors ) shall cease for any
reason to constitute at least a majority of the Outside Directors, unless
the election of each Outside Director, who was not an Outside Director at
the beginning of such period, was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the beginning
of such period; or, (iii) there shall be consummated (A) any consolidation
or merger of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of the Company s common
stock would be converted into cash, securities or other property, other
than a merger of the Company in which the holders of the Company s common
stock immediately prior to the merger have the same proportionate ownership
of common stock of the surviving corporation immediately after the merger,
or (B) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all, of the assets
of the Company, or, (iv) the stockholders of the Company approve a plan or
proposal for the liquidation or dissolution of the Company.
(b) "Constructive Termination", as used herein, shall mean any one or
more of the following occurrences within three (3) years following the
Effective Date of a Change of Control: (i) the Employee is assigned any
duties inconsistent in any material adverse respect with the Employee's
position, authority, duties or responsibilities immediately prior to the
Effective Date of the Change of Control referred to above, or any other
action by the Company which results in a diminution in any material adverse
respect of the Employee's position, authority, duties or responsibilities
as the same existed immediately prior to the Effective Date of the Change
of Control referred to above, (ii) the Employee's total compensation (when
taken as a whole including fringe benefits and the manner of determining
incentive compensation) is changed in a material adverse way or the Company
fails to obtain the assumption of the obligation to perform this Agreement
by any successor as contemplated in Section 8 hereof, (iii) the Company
requires the Employee to be based outside of a radius of thirty (30) miles
from the location of the Company's present corporate offices (except for
required travel on Company business to an extent substantially consistent
with the Employee's business travel obligations immediately prior to such
change in control) or (iv) the Employee is removed from, or is not re-
elected to, the Board of the Company or any successor thereto; provided,
however, that none of the foregoing shall be a Constructive Termination if
any of the foregoing actions are taken by the Company for Cause (as defined
in subsection 1(d) hereof).
(c) "Effective Date", as used herein, shall mean the first date on
which a Change of Control (as defined in Section 1(a)) occurs.
(d) "Cause" For purposes of this Agreement, the Company shall have
"Cause" to terminate the Employee's employment upon (i) the willful failure
by the Employee to substantially perform his duties, other than such
failure resulting from the Employee's incapacity due to physical or mental
illness, (ii) the willful engaging by the Employee in gross misconduct
materially and demonstrably injurious to the Company or its subsidiaries or
(iii) the commission by the Employee of a crime which is a felony. For the
purpose of this subsection (d), no act, or the failure to act, on the
Employee's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his
action or omission was in the best interest of the Company or subsidiaries.
Notwithstanding the foregoing, the Employee shall not be deemed to have
been terminated for Cause under subsections (i), (ii) or (iii) of the first
sentence of this subsection (d), unless and until there shall have been
delivered to the Employee a copy of a resolution, duly adopted by the
affirmative vote of not less than two-thirds (2/3) of the entire membership
of the Company's Board of Directors at a meeting of the Board called and
held for that purpose (after reasonable notice to the Employee and an
opportunity for him, together with his counsel, to be heard before the
Board), finding that in the good faith opinion of the Board, the Employee
was guilty of conduct set forth above in clause (i), (ii) or (iii) of the
first sentence of this subsection (d) and specifying the particulars
thereto in detail.
(e) "Disability" For purposes of this Agreement, an Employee's
"Disability" shall occur if the Employee is absent from his duties as an
employee of the Company on a full-time basis for six (6) consecutive months
following a Change of Control of the Company and if he qualifies for long-
term disability under the Company's long-term disability insurance plan.
2. Termination. If the Employee is terminated for a reason other than
death, Disability, Cause or voluntary resignation not constituting a
Constructive Termination, or is subject to a Constructive Termination (a
Constructive Termination or termination for a reason other than death,
Disability, Cause or voluntary resignation not constituting a Constructive
Termination referred to herein as a "Termination"), within three (3) years
following the Effective Date of a Change of Control, the Employee will be
entitled to receive the benefits set forth below:
(a) Accelerated Vesting.
If a Termination of the Employee occurs
within three (3) years following the Effective Date of a Change of Control,
the vesting of all rights listed on Exhibit A ("Rights") shall be
accelerated to the date on which the Employee is terminated or is subject
to a Constructive Termination.
(b) Salary Continuation. If a Termination of the Employee occurs
within three (3) years following the Effective Date of a Change of Control:
(i) The Employee shall have a right to receive his full base salary
through the date of Termination at the rate in effect at the time
Termination occurs, and in lieu of any further salary payment to the
Employee for periods subsequent to the date of Termination, the Company
shall pay to the Employee in cash an amount equal to three (3) times the
sum of (A) the higher of the Employee's base salary at the date of
Termination or on the date when a Change of Control of the Company occurs
plus (B) the average of the bonus payment plus other incentive compensation
made to the Employee for the two (2) full fiscal years preceding the fiscal
year in which a Change of Control of the Company occurs. At the option of
the Employee, such payment shall be made in a lump sum not later than 5
days after the date of Termination or in substantially equal semimonthly
installments, commencing no later than the fifth day following the date of
Termination and continuing for a period of thirty-six (36) months following
the date of Termination. In the event (A) the Company shall fail to make
any payment to the Employee which is required under this subsection within
ten (10) days of the date that such payment is due and (B) such failure to
pay continues, following written notification by the Employee to the
Company of such failure to make payment, for more than seven (7) additional
days thereafter, all remaining installments or payments payable to the
Employee shall be accelerated and shall become immediately due and payable
by the Company, without any discounting to present value, with interest
accruing on any unpaid portion thereof at the rate of twelve percent (12%)
per annum.
(ii) The Company shall provide to Employee all benefits he was entitled to
immediately prior to the date of Termination during the Salary Continuation
Period, as defined below, including but not limited to all group insurance
plans in which the Employee was entitled to participate immediately prior
to the date of the Termination, provided that the Employee's continued
participation is possible under the terms of such plans (as, for example,
it may not possible if the Employee elects the lump sum payment option
described in subsection 2(b)(i) above), failing which the Company shall
arrange to provide the Employee with alternative benefits and/or insurance
substantially similar to those provided under the then current benefit and
insurance plans unless it is not commercially feasible to do so. If the
cost of providing such benefits is more than 150% of the cost of providing
such benefits for the Employee prior to the date of Termination, then the
parties agree that it shall be deemed not commercially feasible to do so.
(iii) The Salary Continuation Period as used in this Section 2(b) shall
mean three (3) years from the date of a Termination of the Employee.
(c) Mitigation. The Employee shall not be required to mitigate the
amount of any payment provided for in subsection 2(b) by seeking other
employment or otherwise, nor shall the amount of any payment provided for
in subsection 2(b) be reduced by any compensation earned by the Employee as
a result of employment by another employer after the date of Termination,
or otherwise.
3. Rights Apply Only on Change of Control. The rights granted under
this Change of Control Agreement only apply upon a Change of Control and
subsequent Termination and supersede the severance or other similar rights
accruing upon a Change of Control and subsequent Termination under any
other agreement, including without limitation the Key Employee Severance
Agreement, dated as of April 30, 1996, by and between the Company and the
Employee (the "Key Employee Severance Agreement"); provided, however, that
this Agreement shall not amend, modify or supersede in any way the letter
agreement between the Company and Employee as attached as Exhibit 10(d) to
the Company s 10-Q Report for the quarter ended December 31, 1995 filed
with the Securities and Exchange Commission.
4. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois applicable to
agreements made and to be performed in Illinois, without giving effect to
conflicts of law principles.
5. Headings. The section headings of this Agreement are for reference
only and are to be given no effect in the construction or interpretation of
this Agreement.
6. Severability. If any part or provision of this Agreement shall be
declared invalid or unenforceable by a court of competent jurisdiction,
said provision or part shall be ineffective to the extent of such
invalidity or unenforceability only, without in any way affecting the
remaining parts or provisions of this Agreement.
7. Waiver. Any party may waive compliance by another party with any
of the provisions of this Agreement. No waiver of any provision shall be
construed as a waiver of any other provision. Any waiver must be in
writing.
8. Binding Effect; Assignment. This Agreement shall be binding on and
inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights in any person or entity
(including any employee or person engaged by the Company in any capacity)
not a party to this Agreement. The Company will require any successor
(whether direct or indirect, by merger, purchase, consolidation or
otherwise) of the Company to make an express assumption of the obligations
hereunder and cause any successor (whether direct or indirect, by merger,
purchase, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to agree to perform all parts and
provisions under this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had
taken place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement
and shall entitle Employee to compensation from the Company in the same
amount and on the same terms as he would be entitled to hereunder if he is
subject to a Construction Termination, except for purposes of implementing
the foregoing, the date on which any such succession becomes effective
shall be deemed the date of Termination. As used in this Agreement,
Company shall mean the Company as hereinbefore defined and any successor
to the business and/or assets of the Company which executes and delivers
the agreement provided for in this section 8, or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of
law.
This Agreement and all rights of the Employee hereunder shall inure to
the benefit of, and be enforceable by the Employee s personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Employee should die after any
amounts shall become payable to him hereunder, all such amounts, unless
otherwise provided for herein, shall be paid in accordance with the terms
of this Agreement to the Employee s devisee, legatee or other designee or,
if there be no such devisee or other designee, to the Employee s estate.
9. Legal Fees. The Company shall pay, or reimburse the Employee for,
all legal fees and expenses incurred by the Employee as a result of any
Termination of his employment hereunder after a Change of Control of the
Company, including all such fees and expenses, if any, incurred contesting
or disputing in good faith any such Termination or in seeking to obtain or
enforce any right or benefit provided by this Agreement.
10. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration
in Chicago, Illinois in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however,
that the Employee shall be entitled to seek specific performance of his
right to be paid until the date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
11. Counterparts. This Agreement may be signed in any number of
counterparts and all such counterparts shall be read together and construed
as but one and the same document.
12. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered
personally, or sent by facsimile transmission, receipt confirmed, one day
after sent by recognized overnight courier, or five (5) days after deposit
in the United States mail, postage prepaid, registered or certified mail,
return receipt requested, to the parties at the following addresses (or to
such other address as a party may have specified by notice duly given to
the other party in accordance with this provision):
If to the Employee:
At the Employee's then current business or residence address as shown on
the records of the Company, with a copy to such other person as the
Employee may have specified by notice duly given to the Company in
accordance with this provision.
If to the Company:
Quixote Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chairman
IN WITNESS WHEREOF the parties have executed this Agreement, in triplicate,
on the date first written above.
Quixote Corporation Employee
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- ----------------------
By: Its Chief Executive Officer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXHIBIT A
All rights granted to Employee under the Company s plans including, but not
limited to the following:
1993 Long-Term Stock Ownership Incentive Plan
1991 Director Stock Option Plan
Incentive Savings Plan
CHANGE OF CONTROL AGREEMENT BETWEEN
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. AND
QUIXOTE CORPORATION
THIS CHANGE OF CONTROL AGREEMENT, dated as of December 1, 1997 (the
"Agreement"), is by and between Quixote Corporation, a Delaware corporation
having its principal offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
(the "Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., the Chairman and Chief
Executive Officer of the Company (the "Employee").
WHEREAS, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. is presently serving as the Chairman
and Chief Executive Officer of the Company; and
WHEREAS, the Board of Directors of the Company ("the Board") has
recognized and continues to recognize that the Employee's contribution to
the growth and success of the Company has been, and is expected to continue
to be, substantial and desires to assure the Company of the Employee's
continued employment by assuring him of fair treatment if that relationship
is terminated upon a change of control of the Company; and
WHEREAS, the Company and the Employee agree that, as a result of
various factors, it is desirable to enter into this Change of Control
Agreement; and
WHEREAS, the Company desires to retain the Employee's services and the
Employee is willing to continue his employment as an employee of the
Company on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. Certain Defined Terms.
(a). "Change of Control", as used herein, shall mean a change in
control of a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of ▇▇▇▇ ( ▇▇▇▇▇▇▇▇ ▇▇▇ ); provided that, without
limitation, such a change in control shall be deemed to have occurred if :
(i) any person (as that term is defined in Section 13(d) and Section 14(d)
of the Exchange Act) is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing twenty percent (20%)
or more of the combined voting power of the Company s then outstanding
securities; or (ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute all members of the Board who
are not employed by the Company (the Outside Directors ) shall cease for
any reason to constitute at least a majority of the Outside Directors,
unless the election of each Outside Director, who was not an Outside
Director at the beginning of such period, was approved by a vote of at
least two-thirds of the directors then still in office who were directors
at the beginning of such period; or, (iii) there shall be consummated (A)
any consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of the
Company s common stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of the
Company s common stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation
immediately after the merger, or (B) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all,
or substantially all, of the assets of the Company, or, (iv) the
stockholders of the Company approve a plan or proposal for the liquidation
or dissolution of the Company.
(d) "Constructive Termination", as used herein, shall mean any one or
more of the following occurrences within three (3) years following the
Effective Date of a Change of Control: (i) the Employee is assigned any
duties inconsistent in any material adverse respect with the Employee's
position, authority, duties or responsibilities immediately prior to the
Effective Date of the Change of Control referred to above, or any other
action by the Company which results in a diminution in any material adverse
respect of the Employee's position, authority, duties or responsibilities
as the same existed immediately prior to the Effective Date of the Change
of Control referred to above, (ii) the Employee's total compensation (when
taken as a whole including fringe benefits and the manner of determining
incentive compensation) is changed in a material adverse way or the Company
fails to obtain the assumption of the obligation to perform this Agreement
by any successor as contemplated in Section 8 hereof, (iii) the Company
requires the Employee to be based outside of a radius of thirty (30) miles
from the location of the Company's present corporate offices (except for
required travel on Company business to an extent substantially consistent
with the Employee's business travel obligations immediately prior to such
Change of Control) or (iv) the Employee is removed from, or is not re-
elected to, the Board of the Company or any successor thereto; provided,
however, that none of the foregoing shall be a Constructive Termination if
any of the foregoing are taken by the Company for Cause (as defined in
subsection 1(d) hereof).
(e) "Effective Date", as used herein, shall mean the first date on
which a Change of Control (as defined in Section 1(a)) occurs.
(f) "Cause" For purposes of this Agreement, the Company shall have
"Cause" to terminate the Employee's employment upon (i) the willful failure
by the Employee to substantially perform his duties, other than such
failure resulting from the Employee's incapacity due to physical or mental
illness, (ii) the willful engaging by the Employee in gross misconduct
materially and demonstrably injurious to the Company or its subsidiaries or
(iii) the commission by the Employee of a crime which is a felony. For the
purpose of this subsection (d), no act, or the failure to act, on the
Employee's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his
action or omission was in the best interest of the Company or subsidiaries.
Notwithstanding the foregoing, the Employee shall not be deemed to have
been terminated for Cause under subsections (i), (ii) or (iii) of the first
sentence of this subsection (d), unless and until there shall have been
delivered to the Employee a copy of a resolution, duly adopted by the
affirmative vote of not less than two-thirds (2/3) of the entire membership
of the Company's Board of Directors at a meeting of the Board called and
held for that purpose (after reasonable notice to the Employee and an
opportunity for him, together with his counsel, to be heard before the
Board), finding that in the good faith opinion of the Board, the Employee
was guilty of conduct set forth above in clause (i), (ii) or (iii) of the
first sentence of this subsection (d) and specifying the particulars
thereto in detail.
(g). "Disability" For purposes of this Agreement, an Employee's
"Disability" shall occur if the Employee is absent from his duties as an
employee of the Company on a full-time basis for six (6) consecutive months
following a Change of Control of the Company and if he qualifies for long-
term disability under the Company's long-term disability insurance plan.
1. Termination. If the Employee is terminated for a reason other than
death, Disability, Cause or voluntary resignation not constituting a
Constructive Termination, or is subject to a Constructive Termination (a
Constructive Termination or termination for a reason other than death,
Disability, Cause or voluntary resignation not constituting a Constructive
Termination referred to herein as a "Termination"), within three (3) years
following the Effective Date of a Change of Control, the Employee will be
entitled to receive the benefits set forth below:
(a) Accelerated Vesting. If a Termination of the Employee occurs
within three (3) years following the Effective Date of a Change of Control,
the vesting of all rights listed on Exhibit A ("Rights") shall be
accelerated to the date on which the Employee is terminated or is subject
to a Constructive Termination.
(b) Salary Continuation. If a Termination of the Employee occurs
within three (3) years following the Effective Date of a Change of Control:
(i) The Employee shall have a right to receive his full base salary
through the date of Termination at the rate in effect at the time
Termination occurs, and in lieu of any further salary payment to the
Employee for periods subsequent to the date of Termination, the Company
shall pay to the Employee in cash an amount equal to three (3) times the
sum of (A) the higher of the Employee's base salary at the date of
Termination or on the date when a Change of Control of the Company occurs
plus (B) the average of the bonus payment plus other incentive compensation
made to the Employee for the two (2) full fiscal years preceding the fiscal
year in which a Change of Control of the Company occurs. At the option of
the Employee, such payment shall be made in a lump sum not later than 5
days after the date of Termination or in substantially equal semimonthly
installments, commencing no later than the fifth day following the date of
Termination and continuing for a period of thirty-six (36) months following
the date of Termination. In the event (A) the Company shall fail to make
any payment to the Employee which is required under this subsection within
ten (10) days of the date that such payment is due and (B) such failure to
pay continues, following written notification by the Employee to the
Company of such failure to make payment, for more than seven (7) additional
days thereafter, all remaining installments or payments payable to the
Employee shall be accelerated and shall become immediately due and payable
by the Company, without any discounting to present value, with interest
accruing on any unpaid portion thereof at the rate of twelve percent (12%)
per annum.
(ii) The Company shall provide to Employee all benefits he was
entitled to immediately prior to the date of Termination during the Salary
Continuation Period, as defined below, including but not limited to all
group insurance plans in which the Employee was entitled to participate
immediately prior to the date of the Termination, provided that the
Employee's continued participation is possible under the terms of such
plans (as, for example, it may not possible if the Employee elects the lump
sum payment option described in subsection 2(b)(i) above), failing which
the Company shall arrange to provide the Employee with alternative benefits
and/or insurance substantially similar to those provided under the then
current benefit and insurance plans unless it is not commercially feasible
to do so. If the cost of providing such benefits is more than 150% of the
cost of providing such benefits for the Employee prior to the date of
Termination, then the parties agree that it shall be deemed not
commercially feasible to do so. Notwithstanding anything to the contrary
contained herein, the Company shall provide to Employee term life insurance
to age 72, at the level of not less than two (2) times the annual amount of
the Employee's base salary payments during the Salary Continuation Period,
and the Company shall pay any and all premiums associated with such
insurance until the Employee attains age 72.
(iii) "Salary Continuation Period" as used in this Section 2(b) shall mean
a period of three (3) years following the date of a Termination.
(c) Mitigation. The Employee shall not be required to mitigate the
amount of any payment provided for in Section 2(b) by seeking other
employment or otherwise, nor shall the amount of any payment provided for
in Section 2(b) be reduced by any compensation earned by the Employee as a
result of employment by another employer after the date of Termination, or
otherwise.
2. Rights Apply Only on Change of Control. The rights granted under
this Change of Control Agreement only apply upon a Change of Control and
subsequent Termination and, in such circumstances, supersede the severance
or other similar rights accruing upon a Change of Control and subsequent
Termination under any other agreement, including without limitation the
Executive Employment Agreement, dated as of June 24, 1991, by and between
the Company and the Employee, as amended (the "Executive Employment
Agreement"); and except in the circumstance of a Change of Control and
subsequent Termination, the Executive Employment Agreement shall govern in
the event of a conflict between this Agreement and the Executive Employment
Agreement.
3. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois applicable to
agreements made and to be performed in Illinois, without giving effect to
conflicts of law principles.
4. Headings. The section headings of this Agreement are for reference
only and are to be given no effect in the construction or interpretation of
this Agreement.
5. Severability. If any part or provision of this Agreement shall be
declared invalid or unenforceable by a court of competent jurisdiction,
said provision or part shall be ineffective to the extent of such
invalidity or unenforceability only, without in any way affecting the
remaining parts or provisions of this Agreement.
6. Waiver. Any party may waive compliance by another party with any
of the provisions of this Agreement. No waiver of any provision shall be
construed as a waiver of any other provision. Any waiver must be in
writing.
8. Binding Effect; Assignment. This Agreement shall be binding on and
inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights in any person or entity
(including any employee or person engaged by the Company in any capacity)
not a party to this Agreement. The Company will require any successor
(whether direct or indirect, by merger, purchase, consolidation or
otherwise) of the Company to make an express assumption of the obligations
hereunder and cause any successor (whether direct or indirect, by merger,
purchase, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to agree to perform all parts and
provisions under this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had
taken place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement
and shall entitle Employee to compensation from the Company in the same
amount and on the same terms as he would be entitled to hereunder if he is
subject to a Construction Termination, except for purposes of implementing
the foregoing, the date on which any such succession becomes effective
shall be deemed the date of Termination. As used in this Agreement,
Company shall mean the Company as hereinbefore defined and any successor
to the business and/or assets of the Company which executes and delivers
the agreement provided for in this section 8, or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of
law.
This Agreement and all rights of the Employee hereunder shall inure to
the benefit of, and be enforceable by the Employee s personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Employee should die after any
amounts shall become payable to him hereunder, all such amounts, unless
otherwise provided for herein, shall be paid in accordance with the terms
of this Agreement to the Employee s devisee, legatee or other designee or,
if there be no such devisee or other designee, to the Employee s estate.
7. Legal Fees. The Company shall pay, or reimburse the Employee for,
all legal fees and expenses incurred by the Employee as a result of any
Termination of his employment hereunder after a Change of Control of the
Company, including all such fees and expenses, if any, incurred contesting
or disputing in good faith any such Termination or in seeking to obtain or
enforce any right or benefit provided by this Agreement.
8. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration
in Chicago, Illinois in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however,
that the Employee shall be entitled to seek specific performance of his
right to be paid until the date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
9. Counterparts. This Agreement may be signed in any number of
counterparts and all such counterparts shall be read together and construed
as but one and the same document.
10. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered
personally or sent by facsimile transmission, receipt confirmed, one day
after sent by recognized overnight courier, or five (5) days after deposit
in the United States mail, postage prepaid, registered or certified mail,
return receipt requested, to the parties at the following addresses (or to
such other address as a party may have specified by notice duly given to
the other party in accordance with this provision):
If to the Employee:
At the Employee's then current business or residence address as shown on
the records of the Company, with a copy to such other person as the
Employee may have specified by notice duly given to the Company in
accordance with this provision.
If to the Company:
Quixote Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
IN WITNESS WHEREOF the parties have executed this Agreement, in
triplicate, on the date first written above.
Quixote Corporation Employee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-------------------- ----------------------------
By: Its President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
EXHIBIT A
All rights granted to Employee under the Company s plans including, but not
limited to the following:
1993 Long-Term Stock Ownership Incentive Plan
1991 Director Stock Option Plan
Incentive Savings Plan
