Exhibit  10.3


 


CHANGE OF CONTROL AGREEMENT


 


THIS CHANGE OF CONTROL
AGREEMENT, dated as of February 3, 2009 (the “Agreement”), is by and
between Quixote Corporation, a Delaware corporation having its principal
offices at 35 East Wacker Drive, Chicago, IL 60601 (the “Company”), and Bruce
Reimer, an Executive of the Company (“Executive”).


 


WHEREAS, the Executive is a
key employee and elected officer of the Company who possesses valuable
proprietary knowledge of the Company, its business and operations and the markets
in which the Company competes; and


 


WHEREAS, the Board of
Directors of the Company (the “Board”) has recognized and continues to
recognize that the Executive’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 Executive’s continued employment by assuring him of
fair treatment if that relationship is terminated; and


 


                WHEREAS, the Company desires to
encourage the Executive to continue to devote the Executive’s full attention to
the success of the Company by maximizing the value of the Company for its
stockholders, and to provide specified compensation and benefits to the
Executive in the event of a termination of employment after a Change of
Control;


 


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. 
“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 promulgated under the Securities Exchange Act of 1934 (“Exchange
Act”); provided that, without limitation, such a change in control shall be
deemed to have occurred if:


 


(i)             any Person 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.


 


As used in this Section, the term “person” has the meaning ascribed
thereto in Section 3(a) of the Exchange Act, as modified and used in
Sections 13(d)(3) and 14(d)(2) thereof, and includes a “group,” as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended, except that such term shall not include (A) the Company, (B) any
trustee or other fiduciary holding securities under an employee benefit plan of
the Company, (C) an underwriter temporarily holding securities pursuant to
an offering of such securities, or (D) any corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of common stock of the Company.


 


(b)           Good Reason. 
“Good Reason,” as used herein, shall mean any one or more of the events
described in (i) through (iv) of this subsection 1(b) occurring
within three (3) years following the Effective Date of a Change of Control
without the Executive’s written consent. 
The Executive’s termination of employment hereunder shall not be treated
as a termination for Good Reason unless (1) the Executive provides notice
to the Company of the existence of the Good Reason no later than sixty (60)
days after the occurrence of the event which forms the basis for any
termination for Good Reason, and (2) the Company fails to remedy the Good
Reason within thirty (30) days after receipt of notice from the Executive of
the existence of the Good Reason (the “Cure Period”), and (3) the
Executive tenders his resignation in writing to the Company within fifteen (15)
days after the end of the Cure Period:


 


(i)             the Executive
is assigned any duties inconsistent in any material adverse respect with the
Executive’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 Executive’s position, authority, duties or responsibilities as
the same existed immediately prior to the Effective Date of the Change of
Control referred to above; or


 


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(ii)          the Executive’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


 


(iii)       the Company
fails to obtain the assumption of the obligation to perform this Agreement by
any successor as contemplated in Section 11 hereof; or


 


(iv)      the Company requires the
Executive 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 Executive’s
business travel obligations immediately prior to such change in control);
provided, however, that none of the foregoing shall be a Good Reason if any of
the foregoing actions are taken by the Company for Cause (as defined in
subsection 1(d) hereof).


 


(c)           Effective Date. 
“Effective Date,” shall mean the first date on which a Change of Control
as defined in Section 1(a) occurs.


 


(d)           Cause.  The
Company shall have “Cause” to terminate the Executive’s employment upon:


 


(i)             the willful
failure by the Executive to substantially perform his duties, other than when
such failure resulting from the Executive’s incapacity is due to physical or
mental illness;


 


(ii)          the willful
engaging by the Executive in gross misconduct materially and demonstrably
injurious to the Company or its subsidiaries; or


 


(iii)       the commission
by the Executive of a crime which is a felony.


 


For the purpose of this subsection (d), no act, or the failure to act,
on the Executive’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 Executive 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 Executive 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 Executive 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 Executive 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.


 


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(e)           Disability. 
An Executive’s “Disability” shall occur if the Executive is absent from
his duties as an Executive 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.


 


(f)            Salary Continuation Period.  The “Salary Continuation Period” shall mean
three (3) years from the date of a Termination of the Executive.


 


2.             Termination.


 


(a)           Termination of Employment.  If the Executive’s employment: (i) is
subject to a termination for Good Reason, or (ii) is terminated for a
reason other than death, Disability, Cause or voluntary resignation not
constituting a Good Reason (a Good Reason termination, or termination for a
reason other than death, Disability, Cause or voluntary resignation not
constituting a Good Reason is referred to herein as a “Termination”), within
three (3) years following the Effective Date of a Change of Control, the
Executive will be entitled to receive the benefits provided in this Section 2.


 


(b)           Accelerated
Vesting.  If a Termination of the
Executive occurs within three (3) years following the Effective Date of a
Change of Control, the vesting of all rights listed on Exhibit A,
whether by accelerating the exercise or issue date or the lapse of forfeiture
and transfer restrictions, or both, shall be accelerated to the date on which
the Executive’s employment is terminated or is subject to a termination for
Good Reason; provided however, if the event that will result in the Change of
Control is defined by Section 1 (a)(iii) or Section 1(a)(iv),
then the vesting of all rights shall be accelerated to the date that is one day
before the date of the Change of Control such that the Executive is able to
benefit from his ownership of all shares of the Company that would be subject
to the acceleration of the exercise or issue date or the lapse of forfeiture
and transfer restrictions.


 


(c)              Compensation. 
If a Termination of the Executive occurs within three (3) years
following the Effective Date of a Change of Control:


 


(i)             The Executive
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, any
reimbursable expenses which have been incurred but are unpaid, and payment for
any unexpired vacation days which have accrued but are unused.


 


(ii)            In lieu of any
further salary payment to the Executive for periods subsequent to the date of
Termination, the Company shall pay to the Executive in cash an amount (the “Separation
Benefit”) equal to three (3) times the sum of (A) the higher of the
Executive’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 any bonus
payments and other incentive compensation made to the Executive for the two (2) full
fiscal years preceding the fiscal year in which a Change of Control of the
Company occurs.


 


(iii)           The Company shall
continue to provide at no cost to Executive all benefits he was entitled to
immediately prior to the date of Termination during the


 


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Salary
Continuation Period, including but not limited to all group insurance plans,
including life insurance and any executive medical reimbursement plans such as
Exec-U-Care, in which the Executive was entitled to participate immediately
prior to the date of the Termination, provided that the Executive’s continued
participation is possible under the terms of such plans, failing which the
Company shall arrange to provide the Executive with alternative benefits and/or
insurance substantially similar to those provided under the then current benefits
and insurance plans.


 


(d)           Release Agreement. 
Prior to Executive obtaining the right to receive, and in exchange for,
the Separation Benefit, benefits, accelerated vesting, and removal of resale
and transfer restrictions provided in  Section 2(b) and
2(c)(ii)(iii), above, Executive will first enter into and execute, and deliver
to the Company, a Release Agreement substantially in the form attached hereto
as Exhibit B (the “Release”) upon Executive’s termination of
employment.  Unless the Release is executed
by Executive and delivered to the Company within the time period set forth in
Paragraph 15 of the Release, (i) Executive will not receive the Separation
Benefit, (ii) acceleration, if any, of Executive’s stock and option awards
or removal of restrictions on resale as provided in this Agreement will not
apply, and (iii) Executive’s rights in such stock and option awards
following the date of Executive’s Termination will only be to the extent
provided under their original terms in accordance with the applicable stock
option or stock incentive plan and award agreements or as determined by the
Company’s Board of Directors.


 


3.             Withholding Taxes; Code Section 409A.  All payments made under this Agreement shall
be subject to reduction to reflect all federal, state, local and other taxes
required to be withheld by applicable law. 
Notwithstanding anything to the contrary contained in Section 2, if
any payment to the Executive under Section 2 would constitute a “deferral
of compensation” under Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”), (such compensation does not, for example, qualify for
the “short-term deferral exception” under Section 409A of the Code) and
the Executive is a “specified employee” (as such phrase is defined in Section 409A
of the Code), the Executive (or the Executive’s beneficiary) will receive
payment of such amounts described in this Section 3 which would otherwise
be payable hereunder during the first six (6) months following the
Executive’s “separation from service” with the Company (as such phrase is
defined in Section 409A of the Code) upon the first to occur of:  (i) the date which is the first day of
the seventh month after the effective date of the Executive’s separation from
service; or (ii) the Executive’s death; provided however, the Company
shall immediately upon Termination pay such amounts described in this Section 3
into a domestic “rabbi trust” to be held by a mutually-acceptable bank or other
third party until the Executive is entitled to receive such payments.


 


4.             Mitigation. 
The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Agreement
be reduced by any compensation earned by the Executive as a result of
employment by another employer after the date of Termination, or otherwise.


 


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5.             Limitation on Amount of Severance Payment.


 


(a)           Application of Limit.  In the event that any amount or benefit paid
or distributed to the Executive pursuant to this Agreement, taken together with
any amounts or benefits otherwise paid or distributed to the Executive by the
Company (collectively, the “Covered Payments”), would be an “excess parachute
payment” as defined in Section 280G of the Code, and would thereby subject
the Executive to the Excise Tax of Section 4999 of the Code (or any
similar tax that may hereafter be imposed), the provisions of this Section 5
of this Agreement shall apply to determine the amounts payable to Executive
pursuant to this Agreement.


 


(b)           Calculation of Benefits.  The Company within five working days
following the Executive’s termination shall notify the Executive of the
aggregate present value of all termination benefits to which he would be
entitled under this Agreement and any other agreement, plan, program or
arrangement, together with the projected maximum payments, that could be paid
without the Executive being subject to the Excise Tax.  In the event that the Company and the
Executive do not agree as to the termination benefits to be provided, the
aggregate present value of such terminated benefits, or the projected maximum
payments, the parties agree that, during the pendency of the dispute, the
Executive will be entitled to receive any benefits or payments that are not
disputed, and the Executive will have the right to reserve his claim to such
disputed matters, and the Release shall be modified to reflect that reservation
of rights.


 


(c)           Imposition of Payment Cap.  If the aggregate value of all compensation
payments or benefits to be paid or provided to the Executive under this
Agreement and any other plan, agreement or arrangement with the Company exceeds
the amount which can be paid to the Executive without the Executive incurring
an Excise Tax, then the amounts payable to the Executive under this Agreement
shall be reduced (but not below zero) to the maximum amount which may be paid
hereunder without the Executive becoming subject to such an Excise Tax (such
reduced payments to be referred to as the “Payment Cap”).  In the event that Executive receives reduced
payments and benefits hereunder, Executive shall have the right to designate
which of the payments and benefits otherwise provided for in this Agreement
that he will receive in connection with the application of the Payment Cap.


 


(d)           Application of Section 280G.  For purposes of determining whether any of
the Covered Payments will be subject to the Excise Tax and the amount of such
Excise Tax:


 


(i)                         Such Covered
Payments will be treated as “parachute payments” within the meaning of Section 280G
of the Code, and all “parachute payments” in excess of the “base amount” within
the meaning of Section 280G of the Code, shall be treated as subject to
the Excise Tax, unless, and except to the extent that, in the good faith
judgment of the Company’s independent certified public accountants or tax
counsel selected by such Accountants (the “Accountants”), the Company has a
reasonable basis to conclude that such Covered Payments (in whole or in part)
either do not constitute “parachute payments” or represent reasonable


 


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compensation
for personal services actually rendered, within the meaning of Section 280G
of the Code, in excess of the portion of the “base amount allocable to such
Covered Payments,” or such “parachute payments” are otherwise not subject to
such Excise Tax, and


 


(ii)                      The value of
any non-cash benefits or any deferred payment or benefit shall be determined by
the Accountants in accordance with the principles of Section 280G of the
Code.


 


6.             At-Will Employment.  Notwithstanding this Agreement, Executive’s
relationship with the Company continues to be an at-will employment relationship.  The Company or Executive has the right to
terminate Executive’s employment with the Company at any time with or without
Cause and with or without notice. 
Nothing in this Agreement confers upon the Executive any right to
continue in the employ of the Company prior to, or after a Change of Control of
the Company or in any way limits the rights of the Company, except as expressly
stated herein, to discharge the Executive at any time prior to, or after the
date of a Change of Control of the Company for any reason whatsoever, with or
without cause.


 


7.             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 agreements;
provided however, that this Change of Control Agreement shall not amend, modify
or supersede in any way that Severance and Non-Competition Agreement dated as
of February 3, 2009 between the Company and the Executive.


 


8.             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.


 


9.             Headings; Severability.  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.  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.


 


10.           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.


 


11.           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 Executive 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


 


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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 Executive 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 Good Reason, and 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 11, 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 Executive hereunder shall inure to the benefit of, and be
enforceable by the Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.  If the Executive 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 Executive’s devisee, legatee or other designee or, if there be
no such devisee or other designee, to the Executive’s estate.


 


12.           Legal Fees. 
The Company shall pay, or reimburse the Executive for, all legal fees
and expenses incurred by the Executive as a result of any Termination of his
employment hereunder after a Change of Control of any 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.


 


13.           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 American Arbitration Association Employment Law Rules then
in effect.  The arbitrator is expressly
empowered to render legal or equitable relief requested by the parties, whether
on an emergency basis or otherwise, in order to enforce the terms of this
Agreement.  Judgment may be entered on
the arbitrator’s award in any court having jurisdiction; provided, however,
that the Executive 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.


 


14.           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.


 


15.           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):


 


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If
to the Executive:


 


At the Executive’s then
current business or residence address as shown on the records of the Company,
with a copy to such other person as the Executive may have specified by notice
duly given to the Company in accordance with this provision.


 


If to the Company:


 


Quixote
Corporation


35
East Wacker Drive, 11th Floor


Chicago,
IL  60601


Attention:  President


 


[signature
page follows]


 


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IN WITNESS WHEREOF, the parties
have executed this Change of Control Agreement, in triplicate, on the date
first written above.


 


	
  QUIXOTE
  CORPORATION

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
    /s/Leslie
  J. Jezuit

  	
   

  	
    /s/
  Bruce Reimer

  
	
  By:
  Chairman

  	
   

  	
  Bruce
  Reimer

  



 


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EXHIBIT A


 


All rights granted to
Executive under the Company’s plans including, but not limited to the
following:


 


2001 Employee Stock Incentive Plan.


 


Incentive Savings Plan.


 


Restricted Stock Award between Quixote and
Executive dated August 31, 2007.


 


A-1














 


EXHIBIT
B


 


Release
Agreement


 


This
Release Agreement (“Agreement”) is entered into by and between
                            ,
an individual (“Executive”), and Quixote Corporation (the “Company”), a
Delaware corporation:


 


1.             Termination of Employment.
Executive acknowledges that Executive’s employment with the Company terminated
effective
                              ,
200   (the “Separation Date”).


 


2.             Compensation owed. Executive
acknowledges receipt of all compensation (including, but not limited to, any
and all overtime, commission, bonus payments and all other benefits except
accrued but unused vacation time) due from the Company through the payroll
period immediately prior to the Separation Date. Executive and the Company
acknowledge that Executive will receive a lump-sum payment equal to any final
compensation (including Executive’s accrued but unused vacation time of
                          
(    ) days) on the Company’s next regular payday.


 


3.             Separation Benefit: Subject
to the provisions of this Agreement, the Company will accelerate the vesting of
all rights and will  pay Executive the
benefits set forth in Sections 2(b) and (c) of Executive’s Change of
Control Agreement with the Company, but subject to Section 3 thereof (“Separation
Benefit”), commencing within fourteen(14) days of the expiration of the
revocation period described in Paragraph 16 of this Agreement. The Separation
Benefit shall be subject to all required payroll withholdings.


 


4.             Consideration. Executive
acknowledges that Executive would not be entitled to the Separation Benefit
provided for in paragraph 3 above in the absence of Executive’s signing of this
Agreement, that the Separation Benefit constitutes a substantial economic
benefit to Executive, and that it constitutes good and valuable consideration
for the various commitments undertaken by Executive in this Agreement.


 


5.             Parties Released. For
purposes of this Agreement, the term “Releasees” means the Company, its past
and present parents, subsidiaries, divisions, and affiliated companies; their
respective predecessors, successors, assigns, benefit plans, and plan
administrators; and their respective past and present shareholders, directors,
trustees, officers, employees, agents, attorneys and insurers.


 


6.             General Release. Excepting
the Company’s obligations pursuant to that Severance and Non-Competition
Agreement between the Company and the Executive dated February 3, 2009,
Executive, for and on behalf of Executive and each of Executive’s personal and
legal representatives, heirs, devisees, executors, successors and assigns,
hereby acknowledges full and complete satisfaction of, and fully and forever
waives, releases, acquits, and discharges Releasees from any and all claims,
causes of action, demands, liabilities, damages, obligations, and debts
(collectively referred to as “Claims”), of every kind and nature, whether known
or unknown, suspected or unsuspected, or fixed or contingent, which Executive
holds as of the date


 


B-1

















 


Executive
signs this Agreement, or at any time previously held against Releasees, or any
of them, arising out of any matter whatsoever (with the exception of breaches
of this Agreement). This General Release specifically includes, but is not
limited to, any and all Claims:


 


(a)           Arising out of or in any way related
to Executive’s employment with the Company, the termination of his employment;


 


(b)           Arising out of or in any way related
to any contract or agreement between Executive and the Company, excepting the
Severance and Non-Competition Agreement dated February 3, 2009.


 


(c)           Arising under or based on the Equal
Pay Act of 1963; Title VII of the Civil Rights Act of 1964, as amended; Section 1981
of the Civil Rights Act of 1866; the Americans With Disabilities Act of 1990;
the Family and Medical Leave Act of 1993; the Fair Labor Standards Act of 1938;
the National Labor Relations Act; the Worker Adjustment and Retraining
Notification Act of 1988; Employee Retirement Income Security Act of 1974
(ERISA) (excepting claims for vested benefits, if any, to which Executive is
legally entitled thereunder); the Illinois Constitution; the Illinois Wage
Payment and Collection Act; the Illinois Minimum Wage Law, the Illinois Human
Rights Act; and the Illinois Whistleblower Act;


 


(d)           Arising under or based on the Age
Discrimination in Employment Act of 1967 (ADEA), as amended by the Older
Workers Benefit Protection Act (OWBPA), and alleging a violation thereof based
on any action or failure to act by Releasees, or any of them, at any time prior
to the effective date of this Agreement; 
and


 


(e)           Arising out of or in any way related
to any federal, state, county or local constitutional provision, law, statute,
ordinance, decision, order, policy or regulation prohibiting employment
discrimination, providing for the payment of wages or benefits, providing for a
paid or unpaid leave of absence; otherwise creating rights or claims for
employees , including, but not limited to, any and all claims alleging breach
of public policy, whistleblowing, retaliation, the implied obligation of good
faith and fair dealing; any express or implied oral or written contract,
handbook, manual, policy statement or employment practice; or alleging
misrepresentation, defamation, libel, slander, interference with contractual
relations, intentional or negligent infliction of emotional distress, invasion
of privacy, false imprisonment, assault, battery; fraud, negligence, or
wrongful discharge.


 


7.             Intended Scope of Release.
It is the intention of the parties and is fully understood and agreed by them
that this Agreement includes a General Release of all Claims (with the
exception of (i) breaches of this Agreement, (ii) claims for vested
benefits, if any, to which Executive is legally entitled under ERISA, and (iii) obligations
of the Company pursuant to that Severance and Non-Competition Agreement between
the Company and the Executive dated February 3, 2009), which Executive
holds or previously held against Releasees, or any of them, whether or not they
are specifically referred to herein. No reference herein to any specific claim,
statute or obligation is intended to limit the scope of this General Release
and, notwithstanding


 


B-2

















 


any
such reference, this Agreement shall be effective as a full and final bar to
all Claims of every kind and nature, whether known or unknown, suspected or
unsuspected, or fixed or contingent, released in this Agreement.


 


8.             Executive Waiver of Rights.
As part of the foregoing General Release, Executive is waiving all of Executive’s
rights to any recovery, compensation, or other legal, equitable or injunctive
relief (including, but not limited to, compensatory damages, liquidated
damages, punitive damages, back pay, front pay, attorneys’ fees, and
reinstatement to employment), from Releasees, or any of them, in any
administrative, arbitral, judicial or other action brought by or on behalf of
Executive in connection with any Claim released in this Agreement.


 


9.             Covenant Not to Sue. In
addition to all other obligations contained in this Agreement, Executive agrees
that Executive will not initiate, bring or prosecute any suit or action against
any of Releasees in any federal, state, county or municipal court, with respect
to any of the Claims released in this Agreement. Notwithstanding the forgoing,
nothing in this Agreement shall preclude Executive from bringing suit to
challenge the validity or enforceability of this Agreement under the Age
Discrimination in Employment Act as amended by the Older Workers Benefit
Protection Act.


 


10.           Remedies for Breach. If the
Executive, or anyone on Executive’s behalf, initiates, brings or prosecutes any
suit or action against Releasees, or any of them, in any federal, state, county
or municipal court, with respect to any of the Claims released in this
Agreement (except to challenge the validity or enforceability of this Agreement
under the Age Discrimination in Employment Act as amended by the Older Workers
Benefit Protection Act), or if the Executive breaches any of the terms of this
Agreement, then Executive shall  be
liable for the payment of all damages, costs and expenses (including attorneys’
fees) incurred by Releasees, or any of them, in connection with such suit,
action or breach.


 


11.           No Admission of Liability.
Nothing in this Agreement constitutes or shall be construed as an admission of
liability on the part of Releasees, or any of them. Releasees expressly deny
any liability of any kind to Executive, and particularly any liability arising
out of or in any way related to Executive’s employment with the Company or the
termination of Executive’s employment.


 


12.           Post-Employment Covenants.


 


(a)   Executive
hereby reaffirms and agrees to abide by all confidentiality and nondisclosure
obligations, nonsolicitation obligations, noncompetition obligations and any
other post-employment obligations to which Executive is subject under any
contract or agreement between Executive and the Company as well as the Illinois
Trade Secrets Act, any other Illinois statute and Illinois common law.


 


(b)  Executive shall keep confidential the
circumstances surrounding the termination of Executive’s employment with the
Company, as well as the existence of this Agreement and its terms, and agrees
that neither he, nor Executive’s attorneys, nor any of Executive’s agents,
shall directly or indirectly disclose any such matters (other


 


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than to the Equal Employment Opportunity Commission, the Illinois Human
Rights Commission, or any other federal, state or local fair employment
practices agency), unless written consent is given by the Company’s Chief
Executive Officer or other authorized officer of the Company, or unless
required to comply with any federal, state or local law, rule or order.
However, this paragraph will not prohibit Executive from disclosing the terms
of this Agreement to Executive’s attorneys, accountants or other tax
consultants as necessary for the purpose of securing their professional advice,
or in connection with any suit or action alleging a breach of this Agreement.


 


(c)  Executive agrees that Executive will not
access or attempt to access, directly or indirectly, by any matter whatsoever,
the Company’s computer network, including without limitation, the Company’s
e-mail system, the Company’s electronic document storage and retrieval system,
and the Company’s computer network servers and related equipment.


 


13.           Warranty of Return of Company
Property. Executive warrants and acknowledges that Executive has turned
over to the Company all equipment or other property issued to Executive’s by
the Company, along with all documents, notes, computer files, and other
materials which Executive had in Executive’s possession or subject to Executive’s
control, relating to the Company and/or any of its customers. Executive further
warrants and acknowledges that Executive has not retained any such documents,
notes, computer files or other materials (including any copies or duplicates
thereof).


 


14.           Warranty and Covenant of
Nondisparagement. Executive (i) warrants that during the time period
between when Executive was notified of the termination of Executive’s
employment with the Company and Executive’s signing of this Agreement Executive
has not made any disparaging remarks about Releasees which are likely to cause
harm to Releasees, collectively or individually, or their products and services
(“Disparaging Remarks”) and (ii) agrees that Executive shall not make any
Disparaging Remarks following Executive’s signing of this Agreement.


 


15.           Consideration Period.
Executive is advised of to consult with an attorney or other representative of
Executive’s choice prior to signing this Agreement. Executive has a period of
                                
{twenty-one (21)/forty-five (45)} days
within which to consider and accept the Agreement (“Consideration Period”). The
Consideration Period begins to run from the Separation Date which Executive
acknowledges is the date on which Executive received a copy of this Agreement
(if not earlier).


 


16.           Revocation Period. Executive
understands that Executive has the right to revoke this Agreement at any time
within seven (7) days after Executive signs it and that the Agreement
shall not become effective or enforceable until this revocation period has
expired without revocation.


 


17.           Resignation of Officer Position.
If applicable, Executive shall resign from Executive’s position as an officer
of the Company effective no later than the Separation Date.


 


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18.           Warranty of Understanding and
Voluntary Nature of Agreement. Executive acknowledges that Executive has
carefully read and fully understands all of the provisions of this Agreement;
that Executive knows and understands the rights Executive is waiving by signing
this Agreement; and that Executive has entered into the Agreement knowingly and
voluntarily, without coercion, duress or overreaching of any sort.


 


19.           Severability. The provisions
of this Agreement are fully severable. Therefore, if any provision of this
Agreement is for any reason determined to be invalid or unenforceable, such
invalidity or unenforceability will not affect the validity or enforceability
of any of the remaining provisions. Furthermore, any invalid or unenforceable provisions
shall be modified or restricted to the extent and in the manner necessary to
render the same valid and enforceable, or, if such provision cannot under any
circumstances be modified or restricted, it shall be excised from the Agreement
without affecting the validity or enforceability of any of the remaining
provisions. The parties agree that any such modification, restriction or
excision may be accomplished by their mutual written agreement or,
alternatively, by disposition of a court or other tribunal.


 


20.           Entire Agreement/Integration.
This Agreement constitutes the sole and entire agreement between Executive and
the Company with respect to the subjects addressed in it, and supersedes all
prior or contemporaneous agreements, understandings, and representations, oral
and written, with respect to those subjects.


 


21.           No Waiver By the Company. No
waiver, modification or amendment of any of the provisions of this Agreement
shall be valid and enforceable unless in writing and executed by Executive and
the Company’s Chief Executive Officer or other authorized officer of the
Company.


 


22.           Successors and Assigns. This
Agreement shall be binding upon, and shall inure to the benefit of, Executive
and Executive’s personal and legal representatives, heirs, devisees, executors,
successors and assigns, and the Company and its successors and assigns.


 


23.           Choice of Law. This Agreement
and any amendments hereto shall be governed by and construed in accordance with
the laws of the State of Illinois, without regard to conflicts of law
principles.


 


	
  COMPANY:

  	
   

  	
  EMPLOYEE:

  
	
  QUIXOTE
  CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  {Insert Name}

  
	
   

  	
  Its:

  	
   

  	
   

  	
   

  



 


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