Exhibit 10.5


 


RETIREMENT AGREEMENT AND GENERAL RELEASE


 


This Retirement Agreement and General Release (“Agreement”) is entered into by and between
Leslie J. Jezuit (“Jezuit”), an
individual, and Quixote Corporation (“Quixote”),
a Delaware corporation with its principal place of business in Chicago,
Illinois.


 


AGREEMENT


 


1.             Change in Employment.
Jezuit shall resign his position as Quixote’s Chief Executive Officer and
President effective December 31, 2008. From January 1, 2009 through June 30,
2009 (the “Transition Period”),
Jezuit shall remain employed as an officer of Quixote in his position as the
Chairman of Quixote’s Board of Directors. Effective June 30, 2009, Jezuit
shall retire and resign his employment with Quixote (the “Separation Date”). Following the Separation
Date, Jezuit shall continue to serve as a Director for the remainder of his
term, and, if so elected by the Board of Directors, shall continue as the
Chairman of the Board, but not as an employee of Quixote.


 


2.             Transition Period
Compensation.


 


(a)           Jezuit
acknowledges receipt of all compensation, except accrued but unused vacation
time, due from Quixote through the payroll period immediately prior to the date
he signed this Agreement. Jezuit acknowledges that he will receive all owed
accrued but unused vacation time on the first payroll date following December 31,
2008.


 


(b)           During
the Transition Period, Jezuit’s annual base salary shall be One Hundred Twenty
Thousand and 00/100 Dollars ($120,000.00), payable at a rate of $10,000 per
month in accordance with Quixote’s payroll schedule in equal installments in
accord with Quixote’s payroll schedule.


 


(c)           During
the Transition Period, Jezuit shall be entitled to participate in Quixote’s
employee benefits programs at the level applicable to a full-time employee


 


3.             Separation Benefits:
Subject to the provisions of this Agreement and if Jezuit does not revoke his
acceptance of this Agreement, Quixote will provide Jezuit with the following
separation benefits (the “Separation Benefits”):


 


(a)           On
December 30, 2008, Quixote shall pay Jezuit  a single lump sum
payment of Six Hundred and Ninety-Two Thousand Five Hundred and 00/100 Dollars
($692,500.00), less required tax withholding.


 


(b)           If
on or before June 30, 2009, Jezuit executes and delivers, and does not
revoke, the Agreement attached as Schedule 1 to this Agreement, makes a timely
election for COBRA health insurance continuation benefits and remains eligible
for COBRA health insurance continuation benefits, then commencing on July 1,
2009, Quixote shall 


 

















 


provide the first eighteen (18) months of the COBRA health insurance
continuation for Jezuit without cost.


 


Jezuit acknowledges that the Separation Benefits exceed the amount to
which Jezuit would be entitled in the absence of the Agreement. Jezuit shall
bear sole responsibility of all taxes associated with the payment of the
Separation Benefits; provided that the Separation Benefits shall be subject to
applicable income tax and FICA withholding.


 


4.             Consideration. Jezuit
acknowledges that the Separation Benefits constitute a substantial economic
benefit to Jezuit, and that they constitute good and valuable consideration for
the various commitments undertaken by Jezuit in this Agreement.


 


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


 


6.             General Release.
Jezuit, for and on behalf of himself and each of his 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 Jezuit holds as of the date Jezuit 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).
Quixote, on behalf of itself and each of the Releasees, hereby acknowledges
full and complete satisfaction of, and fully and forever waives, releases,
acquits, and discharges Jezuit from any and all Claims of every kind and
nature, whether known or unknown, suspected or unsuspected, or fixed or
contingent, which any of the Releasees holds as of the date Quixote signs this
Agreement, or at any time previously held against Jezuit, arising out of any
matter whatsoever (with the exception of breaches of this Agreement, or matters
involving fraud or criminal activity).This General Release specifically
includes, but is not limited to, any and all Claims:


 


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


 


(b)           Arising
out of or in any way related to any contract or agreement between Jezuit and
Quixote;


 


(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 Jezuit is legally entitled thereunder); the Illinois
Constitution; the Illinois Wage Payment 


 


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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 claim under a federal, state, county or
local constitutional provision, law, statute, ordinance, judicial or
administrative 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 breaches of this Agreement and claims for vested benefits, if any,
to which Jezuit is legally entitled under ERISA), which Jezuit holds or previously
held against Releasees, or any of them, or which any of the Releasees holds or
previously held against Jezuit, 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 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.  Notwithstanding the foregoing, nothing
contained herein shall waive or release any right that Jezuit may have to be
indemnified by Quixote against any claims arising from or relating to Jezuit’s
service as an officer, director and employee of Quixote.


 


8.             Employee Waiver of Rights.
As part of the foregoing General Release, Jezuit is waiving all of his 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 the Releasees, or any of them, in any administrative,
arbitral, judicial or other action brought by or on behalf of Jezuit in
connection with any Claim released in this Agreement.


 


9.             Covenant Not to Sue.
In addition to all other obligations contained in this Agreement, Jezuit agrees
that he 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 Jezuit 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.


 


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10.           Remedies for Breach. If
Jezuit, or anyone on his 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 Jezuit breaches any of the terms of this Agreement, then
Jezuit 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. 
If Quixote or any Releasee, or anyone on behalf of any such party,
initiates, brings or prosecutes any suit or action against Jezuit in any federal,
state, county or municipal court, with respect to any of the Claims released in
this Agreement or if Quixote breaches any of the terms of this Agreement, then
Quixote shall  be liable for the payment of all damages, costs and
expenses (including attorneys’ fees) incurred by Jezuit 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 Jezuit or Releasees, or any of them. Releasees
expressly deny any liability of any kind to Jezuit, and Jezuit expressly denies
any liability of any kind to each Releasee, and particularly any liability
arising out of or in any way related to Jezuit’s employment with Quixote or the
termination of his employment.


 


12.           Nondisclosure of Confidential
Information. With respect to Quixote’s trade secrets and other confidential
information, Jezuit hereby reaffirms and agrees to abide by all confidentiality
and nondisclosure obligations to which he is subject under any agreement with
Quixote, his fiduciary obligations as an officer and director of Quixote, and
the Illinois Trade Secrets Act. In addition to (not in lieu of) the foregoing,
Jezuit hereby agrees to keep confidential and not to use or disclose to others
for his benefit or the benefit of others Quixote’s trade secrets and other
Confidential Information. The term “Confidential
Information” includes, but is not limited to, information relating
to Quixote’s trade secrets and Quixote’s methods of doing business; financial
and tax projections, reports and plans and obligations; corporate equity and
debt positions; sales, marketing, and service strategies, programs, and
procedures; customers and clients, including, but not limited to, their
particularized requirements and preferences, and the identity, authority, and
responsibilities of their key contact persons; payment methods; manufacturing
and vendor information; pricing and cost structures; compensation, incentive
and benefits plans; financial position and business plans; computer databases;
other financial information; research and development projects; new product and
service developments; and any other information of Quixote or any of its
shareholders, employees, vendors, or customers that Quixote informs Jezuit, or
that Jezuit should know by virtue of his position or the circumstances in which
he learned it, is to kept confidential. For purposes of this paragraph 12, “Quixote”
includes its subsidiaries.


 


13.           Solicitation of Employees.
During Jezuit’s employment with Quixote and for the twenty-four (24) month
period following the termination of his employment (“Restricted Period”), with or without cause, and regardless of
whether any payments are made to Jezuit under this Agreement as a result of
such termination, Jezuit shall not solicit, participate in or promote the
solicitation of any Employee to leave the employ of Quixote, or, on behalf of
himself or any other person, hire, employ or engage any such person; provided
however that the foregoing restriction shall not prohibit Jezuit or a firm with
which he is employed or affiliated 


 


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from (i) publishing and receiving responses to a general
solicitation for employment in a general circulation newspaper, magazine,
website or similar medium, or (ii) hiring an Employee of Quixote who has
not been employed by Quixote for a period of at least six (6) months.  Jezuit further agrees that during the
Restricted Period, if a current Employee contacts Jezuit about prospective
employment, Jezuit will inform that Employee that he cannot discuss the matter
further without informing Quixote. For purposes of this paragraph 13, “Quixote”
includes its subsidiaries and “Employee” means an individual employed by
Quixote at any time during the six (6) month period prior to the
termination Jezuit’s employment with Quixote.


 


14.           Noncompetition. During
the Restricted Period, Executive shall not engage directly or indirectly in any
of the following acts:


 


(i)            enter
into or engage in any business which competes with the business of Quixote in
any country where Quixote or its subsidiaries are doing business as of the date
of Jezuit’s termination;


 


(ii)           solicit
customers, business, patronage or orders for, or sell, any products and
services in competition with, or for any business, wherever located, that
competes with the business of Quixote or its subsidiaries in any country where
Quixote or its subsidiaries are doing business as of the date of termination;


 


(iii) divert, entice or otherwise take
away any customers, business, patronage or orders of Quixote or its
subsidiaries in any country where Quixote or its subsidiaries are doing
business as of the date of termination, or attempt to do so; or


 


(iv) promote or assist, financially or
otherwise, any person, firm, association, partnership, corporation or other
entity engaged in any business which competes with Quixote or its subsidiaries
in any country where Quixote is doing business as of the date of termination;


 


provided, however, Jezuit may, without violating the provisions of this
paragraph 14, consult with industry trade associations and not for profit
groups, such as ARTBA, AHUA, and AASHTO.


 


For the purposes of this paragraph 14, but without limitation thereof,
Jezuit will be in violation thereof if Jezuit engages in any or all of the
activities set forth therein directly as an individual on Jezuit’s own account,
or indirectly as a general partner, joint venturer, employee, agent,
salesperson, consultant, officer and/or partnership, limited liability company,
or corporation in which Jezuit or Jezuit’s spouse, child or parent owns,
directly or indirectly, individually or in the aggregate, more than five
percent (5%) of the limited partnership interests, limited liability company
interests or outstanding stock, as the case may be.


 


15.           Existing Agreements.


 


(a)           The
Severance and Non-Competition Agreement, dated July 25, 2008, entered into
by Jezuit and Quixote is superseded in its entirety by this Agreement and shall
have no force or effect whatsoever.


 


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(b)           The
Amended and Restated Change of Control Agreement dated July 25, 2008,
entered into by Jezuit and Quixote shall remain in full force and effect in
accordance with its terms.


 


(c)           The
Stock Option Agreements dated August 27, 1999, August 16, 2000, July 23,
2002, July 1, 2003, August 17, 2004, August 17, 2005, August 17,
2006 and August 20, 2008 entered into by Jezuit and Quixote shall remain
in full force and effect in accordance with their terms.


 


(d)  With respect to the Restricted
Stock Agreement dated August 31, 2007  entered into by Jezuit and
Quixote, all shares granted to Jezuit that have vested as of December 31,
2008 belong to Jezuit under the terms of that agreement, and all shares granted
to Jezuit that have not vest as of December 31, 2008 are forfeited.


 


16.           Consideration Period. Jezuit is advised to consult with an attorney of his
choice prior to signing this Agreement. Jezuit understands that he
has a period of twenty-one (21) days within which to consider and accept the
Agreement. This twenty-one (21) day period begins to run on December 23,
2008, which Jezuit acknowledges is the date on which he received a copy of this
Agreement.


 


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


 


18.           Nondisparagement.
Jezuit shall not make any disparaging remarks about the Releasees which are
likely to cause harm to Releasees, collectively or individually, or their
products and services. The Board of Directors and Quixote’s Chief Executive
Officer (subsequent to Jezuit), Chief Financial Officer, and General Counsel
shall not make any disparaging remarks about Jezuit which are likely to cause
harm to him.


 


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


 


20.           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.


 


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21.           Entire
Agreement/Integration. This Agreement constitutes the sole and entire
agreement between Jezuit and Quixote 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.


 


22.           No Waiver By Quixote.
No waiver, modification or amendment of any of the provisions of this Agreement
shall be valid and enforceable unless in writing and executed by Jezuit and
Quixote’s President.


 


23.           Successors and Assigns.
This Agreement shall be binding upon, and shall inure to the benefit of, Jezuit
and his personal and legal representatives, heirs, devisees, executors,
successors and assigns, and Quixote and its successors and assigns.


 


24.           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.


 


AGREED:


 




	
  QUIXOTE CORPORATION

  	
   

  	
  LESLIE J. JEZUIT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Daniel P. Gorey

  	
  12/23/08     

  	
   

  	
  /s/ Leslie J. Jezuit

  	
  12/23/08               

  
	
                           Executive
  VP

  	
  Date     

  	
   

  	
   

  	
  Date     

  






 


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SCHEDULE 1


 


AGREEMENT


 


This Agreement (“Agreement”)
is entered into by and between Leslie J. Jezuit (“Jezuit”), an individual, and Quixote Corporation (“Quixote”), a Delaware corporation with its
principal place of business in Chicago, Illinois.


 


1.             Resignation.
Jezuit resigns his employment with Quixote Corporation, effective June 30,
2009 (“Resignation Date”).


 


2.             Compensation
owed. Jezuit acknowledges receipt of all compensation, including, but not
limited to, any and all unused vacation time, due from Quixote through the
payroll period immediately prior to the Resignation Date. Jezuit and Quixote
acknowledge that Jezuit will receive a lump-sum payment equal to any final
compensation earned but not yet paid to him on Quixote’s next regular payday
following the Resignation Date.


 


3.             Extension of
Retirement Agreement and General Release. The Retirement Agreement and
General Release previously entered into between Jezuit and Quixote (“Retirement Agreement”), is hereby extended
through the Resignation Date. The terms and provisions of the Retirement
Agreement are incorporated by reference herein and made a part hereof.


 


4.             Consideration.
In consideration for this Resignation Agreement, Jezuit shall be provided the
Separation Benefits set forth in paragraph 3(b) of the Retirement
Agreement, which Jezuit acknowledges constitute good and valuable consideration
for the various commitments undertaken by Jezuit in the Resignation Agreement
and the Retirement Agreement.


 


5.             Revocation
Period. Jezuit understands that he has the right to revoke this Resignation
Agreement at anytime within seven (7) days after he signs it and that the
Agreement shall not become effective or enforceable until the revocation period
has expired without revocation.


 


AGREED:


 




	
  QUIXOTE CORPORATION

  	
   

  	
  LESLIE J. JEZUIT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Date    

  	
   

  	
  Date     

  
				






 


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