TERMINATION AGREEMENT
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THIS TERMINATION AGREEMENT (the "Agreement"), made as of this 27th day of
December, 2002, by and between EDISON CONTROL CORPORATION, a New Jersey
corporation ("EDCO"), and CONSTRUCTION FORMS, INC., a Wisconsin corporation
("ConForms", and collectively and interchangeably with EDCO, the "Company"), on
the one hand, and XXX X. XXXXXXXX ("Xxxxxxxx"), on the other hand.
BACKGROUND
A. In connection with EDCO's acquisition of ConForms on June 21, 1996, (i)
Xxxxxxxx and ConForms executed an Employment Agreement, dated as of June 21,
1996 (the "Employment Agreement") pursuant to which, among other things,
Xxxxxxxx was employed by the Company as its Chief Financial Officer, Treasurer
and Secretary; (ii) Xxxxxxxx and EDCO executed a Stock Option Agreement, dated
as of June 21, 1996 (the "Option Agreement") pursuant to which Xxxxxxxx was
granted an option to purchase 48,611 shares of EDCO's common stock ("Option
Shares") at an exercise price of $3.00 per share pursuant to EDCO's 1986 Stock
Option Plan, as amended (the "Option"); and (iii) Xxxxxxxx purchased 33,333
shares of EDCO common stock ("Direct Shares, and together with the Option
Shares, the "Shares") for a purchase price of $7.50 per share.
B. Effective as of the close of business on December 31, 2002, Xxxxxxxx and
the Company mutually desire to terminate (i) Xxxxxxxx'x employment by the
Company (including terminating his membership on ConForm's Board of Directors);
(ii) the Employment Agreement (other than the noncompetition, nonsolicitation
and confidentiality provisions thereof); and (iii) the Option Agreement (and
unexercised Option), all in exchange for the payments, benefits and other
consideration and agreements set forth in, and subject to the other terms and
conditions of, this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby, the
parties covenant and agree as follows:
1. Termination of Employment and Related Agreements. Xxxxxxxx and the
Company mutually agree that, effective as of the close of business on December
31, 2002, (i) the Employment Agreement (other than the noncompetition,
nonsolicitation and confidentiality provisions set forth in Sections 6 and 7
thereof) and the Option Agreement (and unexercised Option) shall be hereby
terminated and shall be of no further force or effect, and no party thereto
shall thereafter have any further rights or obligations thereunder or pursuant
thereto other than as specifically set forth herein; (ii) Xxxxxxxx'x employment
by and with the Company (including his membership on ConForm's Board of
Directors) shall be hereby terminated; and (iii) Xxxxxxxx shall return to the
Company all Company property in his possession or under his control.
2. Repurchase of Direct Shares. In consideration of Xxxxxxxx'x covenants
and agreements contained in this Agreement, on December 31, 2002, the Company
shall repurchase and cancel Xxxxxxxx'x 33,333 Direct Shares for a cash
repurchase price of $7.00 per share (for a total of $233,331).
3. Cancellation of Option. In consideration of Xxxxxxxx'x covenants and
agreements contained in this Agreement, on January 2, 2002, Company shall pay
Xxxxxxxx $194,444 in cancellation of his unexercised Option (less all applicable
withholding amounts).
4. Continued Payment of Salary/Benefits in 2003; Termination of
Company-Leased Vehicle; Outplacement Services. In consideration of Xxxxxxxx'x
covenants and agreements contained in this Agreement, in accordance with
Xxxxxxxx'x Employment Agreement, but subject to Xxxxxxxx'x compliance with this
Agreement:
a. The Company shall continue during calendar year 2003 to (a) pay
Xxxxxxxx his current $140,000 annual base salary (less all applicable
withholding amounts) in equal installments on the Company's normal employee
payroll dates; (b) provide Xxxxxxxx with his current employee benefits
described in Section 4(c) of his Employment Agreement (i.e., accident,
life, health and disability insurance), provided that Xxxxxxxx continues to
pay the employee-portion of the applicable premium, co-pay and/or
deductible amounts therefor and otherwise continues to comply with the
terms thereof; and (c) pay Xxxxxxxx'x annual membership dues for Xxxxxxxx'x
Company-sponsored country club membership at Hidden Xxxx Country Club;
provided, however, that the Company shall not pay, and Xxxxxxxx shall fully
indemnify and hold the Company harmless from, any other expenses incident
to Xxxxxxxx'x use of such membership, including fees, quarterly or other
dues, and expenses. The Company shall use its best efforts to transfer
Xxxxxxxx'x Company-sponsored country club membership into Xxxxxxxx'x
personal name. From and after the close of business on December 31, 2002,
the Company shall cease paying any and all of Xxxxxxxx'x other
employment-related benefits and perquisites, including, without limitation,
lease payments, gas, operating, maintenance and repair costs and expenses
for Xxxxxxxx'x Company automobile. On December 31, 2002 Xxxxxxxx shall
return to the Company his Company automobile in good condition and repair
in compliance with the related lease agreement or, if Xxxxxxxx so desires,
the Company shall then use its best efforts to transfer Xxxxxxxx'x Company
automobile lease, and possession and use of such automobile, into
Xxxxxxxx'x personal name, provided that Xxxxxxxx hereby agrees to fully
indemnify and hold the Company harmless from any and all liabilities and
costs whatsoever related thereto incurred after any such transfer
(including any transfer-related fees and costs).
b. Upon presentation of a bona fide invoice or invoices, during
calendar year 2003, the Company shall promptly reimburse Xxxxxxxx for up to
$4,000 in fees and expenses related to outplacement services provided by a
nationally recognized executive placement firm acceptable to the Company.
5. Potential Pro-Rated Fiscal 2002-03 Bonus. In consideration of Xxxxxxxx'x
covenants and agreements contained in this Agreement, but subject to Xxxxxxxx'x
compliance with this Agreement, Xxxxxxxx shall be eligible to receive a
pro-rated (i.e., 11/12ths) performance bonus for fiscal 2002-03 in such amount
as the Company's Board of Directors (or Compensation Committee thereof) may
determine in its discretion. Any such bonus shall be payable (less all
applicable withholding amounts) at such time as bonuses for fiscal 2002-03 are
otherwise paid to the Company's executives, but not later than April 15, 2003.
6. Additional Severance Payment. In consideration of Xxxxxxxx'x covenants
and agreements contained in this Agreement, but subject to Xxxxxxxx'x compliance
with this
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Agreement, on January 2, 2002, the Company shall pay Xxxxxxxx an
additional severance payment of $82,000 (less all applicable withholding
amounts).
7. Release. In consideration of the substantial payments, benefits and
other consideration provided by the Company to Xxxxxxxx pursuant to this
Agreement, Xxxxxxxx, for himself and his spouse, heirs, assigns, executors,
administrators, personal representatives and other successors, and in any and
all capacities including, without limitation, as an individual, shareholder,
director, officer and/or employee, does herewith now and forever remise, release
and discharge the Company and its present, former and future affiliates,
shareholders, officers, directors, employees or agents from any and all claims,
demands, actions, suits, liabilities and causes of action of any kind and nature
whatsoever, fixed or contingent, known or unknown, which any of them or any
person claiming through or under Xxxxxxxx ever had or now has or hereafter can,
shall or may have for, upon, or by reason of any matter, cause or thing
resulting from, arising out of, or incurred with respect to, or alleged to
result from, arise out of, or incurred with respect to acts or omissions to act
of all nature and kind whatsoever through the time of the execution of this
Agreement, or arising or in any way related to the repurchase of Xxxxxxxx'x
Direct Shares and/or Option hereunder, or arising out of or in anyway concerned
with or relating to Xxxxxxxx'x employment or Xxxxxxxx'x separation from the
Company through the date hereof, including but not limited to: breach of
contract (other than the express provisions of this Agreement), impairment of
economic opportunity, infliction of emotional distress, defamation of
reputation, any intentional or negligent tort, and any alleged violation arising
under any federal, state, or equal employment law, ordinance, regulation, or
order, including but not limited to any and all federal and state securities
laws, Title VII of the Civil Rights Act of 1964, as amended, the Age
Discrimination Act of 1967, as amended, or any state human rights laws
(collectively, the above provision shall be called the "Release"). Without
limitation to the foregoing Release, Xxxxxxxx hereby specifically waives any
rights or claims against the Company which arise under the Age Discrimination in
Employment Act ("ADEA"). This waiver does not affect those rights or claims
under ADEA which arise after the execution of this waiver. Xxxxxxxx shall have
21 days to consider this waiver, and after signing this Agreement, Xxxxxxxx
shall have an additional seven days to revoke this waiver. This waiver shall not
become effective and enforceable until the seven day revocation period has
elapsed. The Company has advised Xxxxxxxx to consult with an attorney before
signing this Agreement (collectively, the above provision shall be called the
"Waiver").
8. Confidentiality. Xxxxxxxx recognizes and acknowledges that Confidential
Information (as defined below) with respect to the Company's business methods,
systems, plans and policies which he has heretofore received or obtained as an
employee, officer and/or director of the Company, is a valuable and unique asset
of the Company. Accordingly, in addition to his covenants of confidentiality set
forth on Section 7 of his Employment Agreement (which, notwithstanding the
termination of Xxxxxxxx'x Employment Agreement pursuant to this Agreement, shall
remain in full force and effect), in consideration of the substantial payments,
benefits and other consideration provided by the Company to Xxxxxxxx pursuant to
this Agreement, Xxxxxxxx hereby agrees not at any time to disclose, use, furnish
or make accessible to any person or entity Confidential Information acquired by
Xxxxxxxx, including, without limitation, Confidential Information that relates
to the Company's management, Board of Directors, financial condition,
strategies, stock repurchase program, subscription mailing or customer lists,
sources of supply, subcontractors, business, personnel, policies, prospects,
business practices, business plans, methods, processes, equipment, or other
confidential, proprietary or secret aspects of any business conducted or
proposed to be conducted by the Company (individually and collectively,
"Confidential Information") without prior
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written consent from the Company, unless such Confidential Information shall
have become public knowledge other than by being divulged or made accessible by
Xxxxxxxx in breach of this Section 8. Notwithstanding the foregoing, Xxxxxxxx
acknowledges that any Confidential Information that qualifies as a "patent"
and/or "trade secret" under applicable law will be subject to additional
restrictions beyond those specified in this Section 8. Nothing in this Section 8
is intended to limit in any way the statutory protections afforded patents and
trade secrets under applicable law. This Section 8 shall not preclude Xxxxxxxx
from disclosure of such Confidential Information as may be required by any
applicable law, regulation or directive of any governmental agency, court or
other authority having jurisdiction in the matter, or in the proper course of
conduct of the Company business. In the event that any person seeks legally to
compel Xxxxxxxx to disclose Confidential Information, Xxxxxxxx shall promptly
provide the Company with notice so that the Company may have opportunity to seek
a protective order or other appropriate remedy. On December 31, 2002, Xxxxxxxx
shall return to the Company all memoranda, notes, rolodex or similar listings,
reports, records, computer disks, emails, and other documents made or compiled
by Xxxxxxxx, or made available to Xxxxxxxx, which describe, contain or concern
any Confidential Information. Return of such information and materials shall in
no event relieve Xxxxxxxx of his obligations of confidentiality contained herein
(and in Section 7 of his Employment Agreement) respecting such Confidential
Information.
9. Continued Non-Competition and Non-Solicitation Covenant. Notwithstanding
the termination of Xxxxxxxx'x Employment Agreement pursuant to this Agreement,
in consideration of the substantial payments, benefits and other consideration
provided by the Company to Xxxxxxxx pursuant to this Agreement, Xxxxxxxx'x
covenants not to complete with the Company and not to solicit the Company's
employees or customers set forth in Section 6 of Xxxxxxxx'x Employment Agreement
shall remain in full force and effect for calendar year 2003.
10. Equitable Relief for Violations. Xxxxxxxx hereby agrees that the
provisions and restrictions contained in Section 8 and 9 above (including
Sections 6 and 7 of Xxxxxxxx'x Employment Agreement) are necessary to protect
the legitimate continuing business interests of the Company, and that any
violation or breach of any such Section will result in irreparable injury to the
Company for which a remedy at law would be inadequate and that, in addition to
any relief at law which may be available to the Company for such violation or
breach and regardless of any other provision contained in this Agreement, the
Company shall be entitled to reimbursement and disgorgement by Xxxxxxxx for all
of the payments, benefits and other consideration paid or provided to Xxxxxxxx
hereunder and also to injunctive and other equitable relief as a court may grant
after considering the intent of Section 8 and 9 above (including Sections 6 and
7 of Xxxxxxxx'x Employment Agreement), together with all reasonable attorneys'
fees and costs incurred by the Company in enforcing the terms of this Agreement.
Any such disgorgement and/or injunction shall not affect the continued validity
of this Agreement (and Sections 6 and 7 of Xxxxxxxx'x Employment Agreement). The
damages and/or remedies hereunder are not exclusive.
11. Transition Period Tasks; Consulting Services. From the date hereof
through December 31, 2002, Xxxxxxxx shall continue to perform his current duties
and responsibilities in good faith on a full time, exclusive basis during normal
business working hours and shall transition all of his duties and
responsibilities to Xxxx Xxxxx (and/or such other Company employees designated
by the Company's Chief Executive Officer), all to the reasonable satisfaction of
the Company's Chief Executive Officer. During calendar year 2003, Xxxxxxxx shall
provide such consulting or advisory services (but not more than 20 hours of
service) to the Company as may be reasonably requested
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from time to time by the Company's Chief Executive Officer and/or new Chief
Financial Officer to continue to facilitate the smooth transition of Xxxxxxxx'x
duties and responsibilities, all to the reasonable satisfaction of the Company's
Chief Executive Officer.
12. Nondisparagement. In consideration of the substantial payments,
benefits and other consideration provided by the Company to Xxxxxxxx pursuant to
this Agreement, Xxxxxxxx agrees not to make any disparaging remarks about, or
otherwise take any action that would impugn or damage the goodwill or reputation
of, the Company or its shareholders, directors, officers, employees, products,
practices or plans.
13. Xxxxxxxx Aware of All Necessary Information. As the Company's Chief
Financial Officer and Treasurer, Xxxxxxxx is intimately and fully aware of the
Company's business affairs, financial results, financial condition, strategies,
prospects and plans, and is otherwise fully aware of all information about the
Company as he deems necessary and appropriate to enable him to reach an informed
and knowledgeable decision to sell his Direct Shares and cancel his Option
pursuant to this Agreement.
14. Binding Effect. The provisions of this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns. Once executed by the parties
hereto, this Agreement shall be irrevocable.
15. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the matters set forth herein and
supercedes any other written or oral agreement relating to the subject matter
hereof.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same legal instrument. 17. Headings. The
headings in this Agreement are inserted for convenience only and shall not
constitute a part hereof.
IN WITNESS WHEREOF, the parties hereto have executed duly this Agreement as
of the day and year first above written.
CONSTRUCTION FORMS, INC. EDISON CONTROL CORPORATION
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx Xxxx X. Xxxxxxxx
Chief Executive Officer Chief Executive Officer
/s/ Xxx X. Xxxxxxxx
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Xxx X. Xxxxxxxx
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