TERMINATION, SEVERANCE, GENERAL RELEASE AND WAIVER AGREEMENT
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This TERMINATION, SEVERANCE, GENERAL RELEASE AND WAIVER AGREEMENT is made and
entered into as of the 1st day of February 2004, by and between Terex
Corporation, a Delaware corporation (the "Company") and Xxxxxxx de Beer
("Executive").
1. Termination
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Executive hereby acknowledges and agrees that his employment with the
Company will terminate effective as of the end of the business day on
February 1, 2004 (the "Termination Date").
2. Severance Payment and Benefits
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Executive hereby agrees to accept, as full and final consideration for his
promises, obligations and release set forth herein, and in settlement of
any and all claims as particularly set forth below, the following:
(a) Base and Bonus Compensation Payments --
(i) The Company shall pay Executive severance pay from the
Termination Date until the date (the "Severance Period") which is
the earlier of (A) January 31, 2005 or (B) the date on which
Executive obtains alternate employment (it being understood that
alternative employment shall mean full time employment with
another company, entity or person and shall not include providing
part-time consulting services or board of directors positions).
The severance pay shall be calculated on Executive's current base
monthly salary and shall be paid in regular semi-monthly
installments. The Company shall continue to withhold for income
and other applicable taxes, or other amounts, as required by law.
(ii) The Company shall pay Executive a bonus for the calendar year
2003 calculated based on Executive's current target bonus
percentage of 75% of base salary and payout matrix under the
Terex Bonus Plan up to a maximum of 100% of Executive's target
bonus, The Company shall pay Executive's bonus for calendar year
2003 at same time as the Company pays bonuses to other senior
executives of the Company for calendar year 2003 (which is
expected to be on or around April 1, 2003). The Company shall
withhold for income and other applicable taxes, or other amounts,
as required by law.
(b) Health and Welfare Benefits -- The Company agrees that Executive shall
be entitled to continue to participate in all benefits provided to
employees under Terex Corporation Health and Welfare Benefits
Cafeteria Plan and all supplemental benefits provided to senior
executives of the Company as of the date of this Agreement, and for
the purposes of Executive's entitlement to benefits under Terex
Corporation Health and Welfare Benefits Cafeteria Plan and
supplemental benefits, the Executive's termination date shall be the
date of the expiration of the Severance Period. Notwithstanding the
foregoing, the 18-month COBRA period during which Executive may
purchase coverage under the Terex Corporation Health and Welfare
Benefits Cafeteria Plan shall commence on the Termination Date.
(c) Options and Restricted Stock Awards -- Options and Restricted Stock
Awards issued to Executive as of the date of this Agreement pursuant
to the Company's 1994, 1996 and 2000 Long Term Incentive Plans shall
continue to vest until and including February 7, 2005. The Company
agrees that for purposes of the Company's 1994, 1996 and 2000 Long
Term Incentive Plans, Executive's termination date shall be February
7, 2005. The Company shall withhold for income and other applicable
taxes, or other amounts, as required by law.
(e) Tax Preparation - The Company shall continue to pay for tax
preparation services for calendar year 2003 provided to Executive by
Ernst & Young (or such other provider as the Company shall determine)
in accordance with Company policy for all senior executives.
(f) Vacation Pay -- Executive shall be paid for unused vacation time to
which he is entitled in accordance with Company policy and applicable
law as of the Termination Date.
Executive expressly agrees that he shall not be entitled to and shall not
receive any other payments or benefits of any kind from the Company, including
without limitation any bonus payments or any right to contribute to the
Company's 401(k) Plan, Employee Stock Purchase Plan, 1999 Long Term Incentive
Plan or Deferred Compensation Plan, other than the benefits expressly provided
for in this Section 2 (collectively, "Severance Payments"). Executive further
agrees that he would not receive the moneys and/or benefits specified in this
Agreement except for his execution of this Agreement and his fulfillment of the
promises and obligations contained herein.
3. Waiver and Release of Claims and Cooperation
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(a) Executive Understanding of Laws -- Executive understands that there
are various state, federal and local laws that prohibit employment
discrimination on the basis of age, sex, race, color, national origin,
religion, handicap, veteran status and other protected categories and
that these laws are enforced through the Equal Employment Opportunity
Commission, the U. S. Department of Labor, and other agencies.
(b) Executive's Release of Company - In consideration of the agreements
and timely payments of the Company provided for herein, Executive
hereby irrevocably, unconditionally and generally releases, and agrees
not to commence in any forum, any action or proceeding against the
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Company and its parent, subsidiaries, affiliates, successors and
assigns for damages, judgments, or any liability, claims or demands,
known or unknown and of any nature whatsoever and whenever, arising
directly or indirectly out of his employment with the Company or the
termination of such employment or services. Without in any way
limiting the generality of the foregoing, Executive hereby waives and
releases any rights or claims that he may have for salary, bonus,
severance pay or vacation pay, or arising under the Age Discrimination
in Employment Act of 1967, as amended, the Civil Rights Act of 1964,
as amended, the Civil Rights Act of 1991, as amended, the Civil Rights
Act of 1866, the Americans with Disabilities Act of 1990, the National
Labor Relations Act, the Executive Retirement Income Security Act of
1974, the Fair Labor Standards Act, the Occupational Safety and Health
Act, the Consolidated Omnibus Budget Reconciliation Act of 1985, the
Federal Family and Medical Leave Act and any applicable state laws.
Executive waives his right to file any charge or complaint nor will he
accept any relief or recovery from any charge or complaint before any
federal, state, or local administrative agency against the Company
with regard to claims arising from his employment. Executive
acknowledges that he does not have any current action, proceeding,
charge or complaint against the Company pending regarding his
employment. In the event that any such actions, proceedings, charges
or complaints are filed, they shall be dismissed with prejudice upon
presentation of this Agreement.
(c) Cooperation with Company -- Executive shall cooperate with Company in
ensuring a smooth transition following his departure. This will
include, without limitation, Executive cooperating with and making
himself reasonably available to Company, as Company may reasonably
request, to assist it in any matter, including giving truthful
testimony in any litigation or potential litigation, over which
Executive may have knowledge, information or expertise.
4. Protection of Confidential Information; Return of Company Property;
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Non-Disparagement; Non-Competition
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In consideration of the agreements and timely payments of the Company
provided for herein:
(a) No Use of Company Confidential Information -- Executive acknowledges
that:
(i) As a result of his employment with the Company, he has obtained
secret and confidential information concerning the business of
the Company, including, without limitation, the operations and
finances, the identity of customers and sources of supply, their
needs and requirements, the nature and extent of contracts with
them, and related costs, price and sales information
("Confidential Information").
(ii) Executive agrees that he will not at any time divulge to any
person, firm or corporation, or use for his own benefit, any
Confidential Information obtained or learned by him during the
course of his employment with the Company, except (i) with the
Company's express written consent; (ii) to the extent that any
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such information is in or becomes part of the public domain other
than as a result of Executive's breach of any of his obligations
hereunder; (iii) where required to be disclosed by court order,
subpoena or other government or legal process by law, in which
event Executive shall promptly notify the Company.
(iii)The existence and terms of this Agreement are Confidential
Information, and Executive agrees not to disclose, either
directly or indirectly, any information whatsoever regarding the
existence or substance of this Agreement, including specifically
any of the details of his Severance Payments, except to his
financial, tax, legal and other similar advisors.
(b) Executive to Return Company Property -- Except as provided herein,
Executive shall, on the Termination Date, deliver to the Company all
memoranda, notes, software, records, reports, manuals, lists and other
documents or materials (and all copies thereof) provided to Executive
by Company or otherwise in his possession relating to the business of
the Company and all property associated therewith which he may possess
or have under his control. Executive shall have the right to retain
all of his personal property. With respect to the Company car used by
Executive, Executive agrees that he will return the car to the Company
in good condition (reasonable wear and tear excepted) within thirty
(30) days from the date of this Agreement. During said 30-day period
the Company will reimburse Executive for the monthly lease payment,
cost of maintenance and operation and insurance in accordance with
current policy and practice, and the Company shall withhold for income
and other applicable taxes, or other amounts, as required by law.
Notwithstanding the foregoing, Executive shall be entitled to keep the
laptop computer currently being used by him after he provides the
computer to the Company so that it can remove all Company data,
information and files.
(c) Non-disparagement -- Executive agrees he will conduct himself in a
professional manner and not make any disparaging, negative or other
statements regarding the Company, its parents, subsidiaries,
affiliates, directors, officers or employees which could in any way
have an adverse effect on the business or affairs of the Company.
(d) Non-Competition -- In consideration of the agreements and timely
payments of the Company provided for herein, the Executive agrees that
for a period of eighteen (18) months from the date of this Agreement,
he will not, without the prior written permission of the Company,
directly or indirectly, (i) enter into the employ of or render any
services to any person, firm, or corporation engaged in the
manufacture or sale of products currently manufactured or distributed
by the Company or its subsidiaries or divisions, which directly or
indirectly compete with the business of the Company or such divisions
and subsidiaries (a "Competitive Business") (unless such person, firm
or corporation conducts at least some business which does not
constitute a Competitive Business and Executive is solely employed by,
or renders services to business(es) that is (are) not a Competitive
Business); (ii) engage in any Competitive Business for his own
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account; (iii) become associated with or interested in any Competitive
Business as an individual, partner, shareholder, creditor, director,
officer, principal, agent, employee, trustee, consultant, advisor or
in any other relationship or capacity (unless such business, person or
company conducts at least some business which does not constitute a
Competitive Business and Executive is solely associated with or
interested in business(es) which is (are) not a Competitive Business);
or (iv) solicit, induce or entice, or cause any other person or entity
to solicit, induce or entice to leave the employ of the Company any
person who was employed or retained by the Company on the Termination
Date. However, nothing in this Agreement shall preclude Executive from
investing his personal assets in the securities of any corporation or
other business entity which is engaged in a business competitive with
that of the Company if such securities are traded on a national stock
exchange or in the over-the-counter market and if such investment does
not result in his beneficially owning, at any time, more than five
percent (5%) of the publicly-traded equity securities of such
competitor. Nothing in this Agreement shall preclude Executive from
retaining his position or membership in trade associations and
professional organizations.
(e) The Executive agrees that this non-competition and non-solicitation
covenant is reasonable under the circumstances, and the Executive
further agrees that his services for and on behalf of the Company are
unique and irreplaceable. The Executive further agrees that any breach
of the covenants contained in Paragraph 4 would irreparably injure the
Company and/or its subsidiaries or divisions. Accordingly, the
Executive agrees that the Company may, in addition to pursuing any
other remedies it may have at law or in equity, obtain an injunction
against the Executive from any court having jurisdiction over the
matter restraining any further violation of the covenants contained in
Paragraph 4.
5. Consultation with Attorney and Review of Agreement and Release
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By executing this Agreement, Executive acknowledges that (i) he has been
advised in writing by the Company to consult with an attorney before
executing this Agreement; (ii) he had adequate time to review this
Agreement and to consider whether to sign this Agreement; (iii) he
understands each and every term of this Agreement and the full effect of
signing this Agreement, including his obligations to the Company and his
release and waiver of any and all claims; (iv) he has been provided a
period of at least 21 days within which to consider this Agreement and
consult with counsel; and (v) for a period of seven days following
execution of this Agreement, Executive may revoke this Agreement and this
Agreement will not be effective until the revocation period expires. In the
event Executive revokes in accordance with this provision, he shall return
to the Company all consideration received under this Agreement, if any.
6. Third Party Agreements
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Executive hereby warrants and represents that he has not entered into any
third party agreements in Company's name or on Company's behalf of which
Company has not been previously advised in writing. Executive further
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warrants and represents that during the period of his employment with
Company he has not engaged in any conduct or activity which constitutes a
violation of law, misconduct or a material violation of Company's policies.
7. No Admission by the Company
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This Agreement and/or any payments made hereunder are not intended to be an
admission or concession by the Company of any wrongdoing or illegal or
actionable acts or omissions and the Company affirmatively states that it
has not engaged in any such acts or omissions. In consideration of the
Company's agreement to make the Severance Payments, Executive shall not
directly or indirectly make any written or oral statements, suggestions or
representations that the Company has made or implied any such admission or
concession.
8. Breach of this Agreement
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In the event Executive breaches any of the provisions of this Agreement,
the Company shall provide Executive with ten (10) days written notice of
the existence of such breach. If Executive fails to cure such breach with
the 10-day notice period, the Company's obligation hereunder to provide
Executive any further Severance Payments and/or benefits shall immediately
cease.
9. Miscellaneous
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This Agreement contains all the understandings and agreements with respect
to the matters set forth herein, and there are no others made either
contemporaneously herewith, or otherwise. This Agreement shall be governed
by the laws of the state of Connecticut applicable to contracts made and
wholly performed therein, without reference to conflicts of law principles.
This Agreement may not be modified, altered or changed except upon express
written consent of both parties wherein specific reference is made to this
Agreement. The construction and interpretation of this Agreement shall not
be strictly construed against the drafter. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provisions of this Agreement, all
of which shall remain in full force and effect. The headings in this
Agreement are for reference only, and shall not affect the interpretation
of this Agreement.
11. Voluntary Signing
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Executive acknowledges that this Agreement and all the terms hereof are
fair, reasonable and are not the result of any fraud, duress, coercion,
pressure or undue influence exercised by the Company and that he has
approved and/or entered into this Agreement and all of the terms hereof,
knowingly, freely and voluntarily.
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12. Successors
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This Agreement 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
shall die while any amount would still be payable to the Executive
hereunder (other than amounts which, by their terms, terminate upon the
death of the Executive) if the Executive had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the executors, personal representatives or
administrators of the Executive's estate.
_______________________________
Xxxxxxx de Beer
TEREX CORPORATION
By: _______________________________
Name:
Title:
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