EXHIBIT 10.06
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement"), made this 14th
day of June 2002, is entered into by Wabash National Corporation (the "Company")
and Xxxx Xxxxxx (the "Executive").
WHEREAS, the Executive is currently employed by the Company as Chief
Financial Officer, and has entered into a Severance Agreement with the Company
dated May 6, 2002 (the "Severance Agreement"); and
WHEREAS, the Executive and the Company desire to and hereby agree to
nullify the Severance Agreement.
NOW, THEREFORE, the parties, desiring to set forth the terms of
Executive's employment, agree as follows:
1. TERM OF EMPLOYMENT; EXTENSION. The Company agrees to employ the
Executive, and the Executive accepts employment with the Company, upon the terms
set forth in this Agreement, for the period commencing on June 14, 2002 (the
"Commencement Date") and ending on June 14, 2003 (the "Employment Period"),
unless sooner terminated in accordance with the provisions of Section 4;
provided, however, that the term of the Executive's employment with the Company
shall be automatically extended for a term of one (1) year beginning on the
first anniversary hereof and on each subsequent anniversary unless the Executive
or the Company shall have given written notice to the other at least sixty (60)
days prior thereto that the term of the Executive's employment shall not be so
extended. In the event that the Company chooses not to extend the term of the
Executive's employment in accordance with this Section 1, the Executive shall
not be entitled to any severance, benefits, or other payments, except that the
Company shall continue to pay the Executive's then-current salary (or the Base
Salary as that term is defined in Section 3.1 if that salary is greater) for a
period of two (2) years following the termination of his employment. Such
payments shall be made according to the Company's regular payroll practices and
policies and shall be less deductions and withholding for federal, state, and
local taxes as determined by the Company. In addition, such payments shall be
offset by any salary, wages, or bonuses received by the Executive during this
two-year period. Accordingly, in the event that the Company pays the Executive
such payments, the Executive shall, at reasonable intervals, provide the Company
with an accounting of any salary, wages, or bonuses that he receives during this
two-year period. During this two-year period, or until Executive is eligible to
receive health benefits from another employer, whichever is shorter, the Company
also shall continue Executive's participation in its group health plan, to the
extent that continuation is permitted by such plan. Such continuation of
benefits shall run concurrently with Executive's rights under COBRA or any state
benefit continuation plan.
The Company's right to offset as noted in this paragraph is specific
to this section and shall not be confused with any rights and benefits contained
in section 5.5.
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2. TITLE; CAPACITY. The Executive shall serve as Chief Financial
Officer of the Company and shall report to the Chief Executive Officer. The
Executive agrees to undertake and faithfully perform the duties and
responsibilities inherent in such position and such other duties. The Executive
agrees to devote his entire business time, attention and energies to the
business and interests of the Company during the Employment Period, excepting
periods of vacation, illness or disability and except such time as the Executive
may reasonably require for personal matters and affairs. Executive shall not
engage in any activities which will interfere with the performance of his duties
with the Company or which knowingly present a conflict of interest. During the
Executive's employment with the Company, Executive may serve on the boards of
directors of other entities and may pursue passive investments; provided that
such activities do not unreasonably interfere with his duties and
responsibilities hereunder or create a conflict of interest with the Company;
and further provided that, with respect to serving on the boards of directors of
entities other than charitable organizations and not-for-profit corporations,
the Executive obtains written consent from the Company, such consent not to be
unreasonably withheld.
3. COMPENSATION AND BENEFITS.
3.1. Salary. The Company shall pay the Executive, in accordance
with its regular payroll practices, an annual base salary of not less than three
hundred fifty thousand dollars ($350,000) during the Employment Period (the
"Base Salary"). Executive's Base Salary shall be subject to an annual review and
possible adjustment pursuant to such annual review based on a discussion between
the parties of the Executive's performance hereunder. All payments hereunder
shall be less deductions and withholding for federal, state, and local taxes as
determined by the Company.
3.2. Bonus Compensation. The Executive shall be eligible for an
annual incentive bonus ("Bonus"), which is targeted at fifty percent (50%) of
his Base Salary and which may range from zero percent (0%) to one hundred
percent (100%) of his Base Salary. The amount of any Bonus shall be at the sole
discretion of the Company, which shall make its determination based on the
Company's performance and the Executive's performance. Notwithstanding the
foregoing, the parties agree that the Executive's bonus shall be at least one
hundred fifty thousand dollars ($150,000) for fiscal year 2002, payable in
February 2003. Any Bonus payment hereunder shall be less deductions and
withholding for federal, state, and local taxes as determined by the Company.
3.3. Stock Options. Executive shall be granted concurrently with
his start date stock options to purchase 125,000 shares of common stock of the
Company (the "New Hire Option"), at an exercise price equal to the fair market
value of the Company's common stock on the date of grant. Subject to the
Executive's continuous employment with the Company, two-thirds of the New Hire
Option shares shall vest on June 14, 2004, and the remaining one-third of the
New Hire Option shares shall vest on June 14, 2005, as set forth in the
Nonqualified Stock Option Agreement, Exhibit A to this Agreement.
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3.4. Fringe Benefits. The Executive shall be entitled to
participate in the fringe benefit programs established by the Company according
to the terms and conditions of those programs and to the extent those programs
are generally applicable to other executives of the Company. The Executive shall
be entitled to four (4) weeks of vacation each year. In addition to and
notwithstanding the foregoing, the Company shall pay to Executive during each
year of employment an additional sum of twenty thousand dollars ($20,000.00),
which represents the premium payment and tax gross up amount paid by Executive's
current employer, to enable Executive to participate in an executive life
insurance program of his choosing.
3.5. Reimbursement of Expenses. The Company shall reimburse the
Executive for all reasonable business expenses paid or incurred by the Executive
in connection with the performance of his duties and responsibilities under this
Agreement, upon presentation by the Executive of documentation, expense
statements, vouchers and/or such other supporting information as the Company may
reasonably request.
3.6. Relocation Expenses. If during the term of this Agreement
the Corporate headquarters is relocated more than 30 miles from the current
location in Lafayette, Indiana, the Company shall reimburse the Executive for
the customary and reasonable relocation expenses that he and his family incur in
moving his residence to the relocation area. Without limiting the generality of
the foregoing, the Company agrees that it will pay the reasonable costs of
relocating the Executive and his family from his existing residence in West
Lafayette, Indiana, (the " West Lafayette Home") to the relocation area. Such
costs shall include: (a) the cost of having a moving company or companies
selected by the Executive move the household items and automobiles of the
Executive and his family, such costs to be grossed up so that the Executive pays
no federal or state income taxes for such move and storage; (b) the closing
costs, including real estate commission, transfer taxes, title searches, survey
costs, and reasonable attorneys' fees, incurred by the Executive in selling his
West Lafayette Home; and (c) the closing costs, including transfer taxes, title
searches, survey costs, reasonable points (consistent with the marketplace) for
a mortgage, inspection fees, and reasonable attorneys' fees incurred by the
Executive in purchasing a residence in relocation area. Until the sale of the
West Lafayette Home is consummated, the Executive will be responsible for
maintaining the West Lafayette Home (including mortgage payments, property
taxes, upkeep, and insurance). The Company shall also reimburse the Executive's
wife for the travel expenses she incurs for up to two "house hunting" and
relocation trips from the West Lafayette Home to the relocation, Indiana area.
In the event that the Company's moving expense and relocation package is, in
whole or in part, more generous than provided above, then the Executive shall be
entitled to receive the more generous package or portion thereof. The
obligations of the Company under this Section 3.6. shall survive the termination
of the Executive's employment for any reason.
3.7. Residual Compensation. All compensation due under the terms
of this Agreement, but not yet paid, shall be paid to Executive notwithstanding
the expiration of the term of the Agreement.
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4. EMPLOYMENT TERMINATION. The employment of the Executive by the
Company shall terminate upon the occurrence of any of the following:
4.1. Expiration or non-extension of the Employment Period in
accordance with Section 1.
4.2. At the election of the Company, for Cause, upon written
notice by the Company to the Executive. For purposes of this Section 4.2., Cause
for termination shall be deemed to exist upon: (a) the Executive's willful and
continued failure to perform his principal duties (other than any such failure
resulting from vacation, leave of absence, or incapacity due to injury,
accident, illness, or physical or mental incapacity) as reasonably determined by
the Board in good faith after the Executive has been given written, dated notice
by the Board specifying in reasonable detail his failure to perform and
specifying a reasonable period of time, but in any event not less than twenty
(20) business days, to correct the problems set forth in the notice; (b) the
Executive's chronic alcoholism or addiction to non-medically prescribed drugs;
(c) the Executive's theft or embezzlement of the Company's money, equipment, or
securities; (d) the conviction of the Executive of, or the entry of a pleading
of guilty or nolo contendere by the Executive to, any felony or misdemeanor
involving moral turpitude or dishonesty; or (e) a material breach of this
Agreement by the Executive, and the failure of the Executive to cure such breach
within ten (10) business days of written notice thereof specifying the breach.
In no event shall the failure to achieve the goals set forth in accordance with
Section 3.2. of this Agreement be in and of itself Cause for termination, but
such failure may be considered as part of his overall performance. No act or
omission on the part of the Executive shall be considered "willful" unless it is
done by the Executive in bad faith or without reasonable belief that the
Executive's action was in the best interests of the Company. Any act or omission
based upon authority given pursuant to a resolution duly adopted by the Board of
Directors of the Company or based upon the advice of counsel for the Company
shall be conclusively deemed to be done by the Executive in good faith and in
the best interests of the Company.
4.3. At the election of the Executive, with Good Reason, upon
written notice by the Executive to the Company. For purposes of this Section
4.3., Good Reason for termination shall be deemed to exist upon: (a) a material
diminishment of the Executive's position, duties, or responsibilities; (b) the
assignment by the Company to the Executive of substantial additional duties or
responsibilities which are inconsistent with the duties or responsibilities then
being carried by the Executive and which are not duties of an executive nature;
(c) a material breach of this Agreement by the Company, and the failure of the
Company to cure such breach within twenty (20) business days of written notice
thereof specifying the breach; (d) material fraud on the part of the Company; or
(e) discontinuance of the active operation of business of the Company, or
insolvency of the Company, or the filing by or against the Company of a petition
in bankruptcy or for reorganization or restructuring pursuant to applicable
insolvency or bankruptcy law.
4.4. Upon the death or disability of the Executive. For purposes
of this Section 4.4, the Executive shall be deemed to have a disability where:
(a) the Executive has been unable, by reason of illness or injury and with or
without a reasonable accommodation, to
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perform his normal duties on behalf of the Company on a full-time basis for a
period of 180 days, whether or not consecutive, within the preceding 360-day
period; or (b) the receipt by the Executive of disability benefits for permanent
and total disability under any long-term disability income policy held by or on
behalf of the Executive.
4.5. At the election of the Company, without Cause, upon thirty
(30) days' written notice by the Company to the Executive, or at the election of
the Executive, for Good Reason, upon thirty (30) days' written notice by the
Executive to the Company, subject to the provisions of Sections 5.3. and 5.4.
below. If the Executive is terminated at the election of the Company without
Cause or the Executive terminates at his election for Good Reason, then, except
as otherwise provided in this Agreement, the payments set forth in Sections 5.3.
and 5.4., whichever Section applies, shall be in complete accord and
satisfaction of any claim that the Executive has or may have for compensation or
payments of any kind from the Company arising from or relating in whole or in
part to the Executive's employment with or termination by the Company.
4.6. At the election of the Executive, without Good Reason, upon
thirty (30) days' written notice to the Company.
5. EFFECT OF TERMINATION.
5.1. Termination for Cause or without Good Reason. If the
Executive's employment is terminated for Cause (as defined in Section 4.2.) or
if the Executive terminates his employment without Good Reason (as defined in
Section 4.3.), the Company shall pay to the Executive the compensation and
benefits otherwise payable to him under Section 3 through the last day of his
actual employment by the Company. However, the Executive shall not be entitled
to any Bonus payment for the fiscal year in which he is terminated for Cause.
5.2. Termination for Death or Disability. If the Executive's
employment is terminated by death or because of disability pursuant to Section
4.4., the Company shall pay to the estate of the Executive or to the Executive,
as the case may be, the compensation and benefits which would otherwise be
payable to him under Section 3 up to the date the termination of his employment
occurs. However, the Executive's Bonus, assuming the attainment of the goals set
forth in Section 3.2. of this Agreement, for the fiscal year in which
termination occurs because of death or disability will be pro-rated based on his
length of service with the Company in that year. For example, if the Executive
terminates because of disability six months into the fiscal year, his Bonus, if
any, would be fifty percent of the regular Bonus for that year. Executive shall
maintain all of his rights in connection with his vested stock options. Such
options shall be deemed immediately and fully vested as of the date of the
termination of his employment by the Company, and they shall be exercisable
within the earlier of: (a) the time period provided for under Exhibit A hereto;
or (b) three (3) years from the date of such termination.
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5.3. Termination without Cause or for Good Reason.
(a) If the Executive's employment is terminated by the Company
without Cause or by him for Good Reason pursuant to Section 4.5 at any time
during the Term of this Agreement (or any ex on hereof), the Company shall
continue to pay the Executive's then-current salary (or the Base Salary as that
term is defined in Section 3.1 if that salary is greater) for a period of two
(2) years following the termination of his employment. Such payments shall be
less deductions and withholding for, federal, state, and local taxes as
determined by the Company. During this two-year period, or until Executive is
eligible to receive health and other welfare benefits from another employer,
whichever is longer, the Company shall also continue Executive's participation
in its group health plan. Such continuation of benefits shall run concurrently
with Executive's rights under COBRA or any state benefit continuation plan. In
addition, the Executive's bonus, assuming the attainment of the goals set forth
in Section 3.2 of this Agreement, for the fiscal year in which termination
occurs at the election of the Company without cause, will be pro-rated based on
his length of service with the Company in that year. For example, if the
Executive is terminated without Cause six months into the fiscal year, his
Bonus, if any, would be fifty percent of the regular Bonus for that year. Any
Bonus payments hereunder shall be less deductions and withholding for federal,
state, and local taxes as determined by the Company. The Company shall also pay
to the Executive the compensation and benefits otherwise payable to him under
Section 3 through the last day of his actual employment by the Company, and the
Executive shall maintain all of his rights in connection with his vested stock
options. Such options shall exercisable within the earlier of: (a) the time
period provided for under Exhibit A; or (b) three (3) years from the date of
such termination.
5.4. TERMINATION AT THE ELECTION OF THE COMPANY AFTER A CHANGE OF
CONTROL. If the Executive's employment is terminated without Cause by the
Company or for Good Reason by the Executive pursuant to Section 4.5. within 180
days after a change of control as defined below, the Company shall pay to the
Executive a sum equal to three times his Base Salary (as set forth in Section
3.1.) plus his target bonus for that fiscal year, less applicable deductions and
withholding for federal, state, and local taxes as determined by the Company.
The Company shall also pay to the Executive the compensation and benefits
otherwise payable to him under Section 3 through the last day of his actual
employment by the Company. In addition, the parties agree that any unvested
stock options or restricted stock held by the Executive shall be deemed
immediately and fully vested as of the date of the termination of his employment
by the Company without Cause or by the Executive for Good Reason after a change
of control. Such stock options shall be exercisable within the earlier of: (a)
the time period provided for under Exhibits A and B hereto; or (b) two (2) years
from the date of such termination. The parties agree that the terms of this
Section 5.4. (only if the Executive becomes entitled to the benefits described
in this Section 5.4.) shall constitute amendments to any and all stock option
and restricted stock agreements that will have been agreed to by the parties and
that, except as so amended, the terms and conditions of such stock option and
restricted stock agreements shall remain in full force and effect. The parties
further agree that the Company, at its election, shall either continue the
Executive's benefits (pursuant to the terms and conditions of the applicable
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benefits plans and policies) for a period of three (3) years from the date of
the termination of his employment without Cause or for Good Reason, or shall pay
to the Executive a lump sum payment, less applicable withholdings for federal,
state, and local taxes, equal to three (3) years' premiums (at the rate and
level of coverage applicable at the time of the Executive's termination) under
the Company's health and dental insurance policy plus three (3) years' premiums
(at the rate and level of coverage applicable at the time of the Executive's
termination) under the Company's life insurance policy.
(a). Change of Control. For purposes of this Agreement, a
"Change of Control" of the Company shall be deemed to have occurred if: (A) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), other than any person
currently a "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act)
of the Company's securities becomes, after the date hereof, the beneficial
owner, directly or indirectly, of securities of the Company representing fifty
percent (50%) or more of the combined voting power of the Company's then
outstanding securities; (B) during any two- (2-) year period, individuals who at
the beginning of such period constitute the Board of Directors, including for
this purpose any new director whose election resulted from a vacancy on the
Board of Directors caused by the mandatory retirement, death, or disability of a
director and was approved by a vote of at least two-thirds (2/3rds) of the
directors then still in office who were directors at the beginning of the
period, cease for any reason to constitute a majority thereof; (C)
notwithstanding clauses (A) or (E) of this paragraph, the Company consummates a
merger or consolidation of the Company with or into another corporation, the
result of which is that the stockholders of the Company at the time of the
execution of the agreement to merge or consolidate own less than eighty percent
(80%) of the total equity of the corporation surviving or resulting from the
merger or consolidation or of a corporation owning, directly or indirectly, one
hundred percent (100%) of the total equity of such surviving or resulting
corporation; (D) the sale in one or a series of transactions of all or
substantially all of the assets of the Company; (E) any person has commenced a
tender or, exchange offer, or entered into an agreement or received an option to
acquire beneficial ownership of fifty percent (50%) or more of the total number
of voting shares of the Company unless the Board of Directors has made a
reasonable determination that such action does not constitute and will not
constitute a change in the persons in control of the Company; or (F) there is a
change of control in the Company of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Exchange Act other than in circumstances specifically covered by
clauses (A) - (E) above.
(b). In the event that it is determined that any payment,
benefit, or distribution described in this Section 5.4 made by the Company, by
any of its affiliates, by any person who acquires ownership or effective control
or ownership of a substantial portion of the Company's assets (within the
meaning of section 280G of the Internal Revenue code of 1986, as amended, and
the regulations thereunder (the "Code")) or by any affiliate of such person,
whether paid or payable or distributed or distributable pursuant to the terms of
this Section 5.4. or otherwise (the "Total Payments"), would be subject to the
excise tax imposed by section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together
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with any such interest or penalties, are collectively referred to as the "Excise
Tax"), then the Executive shall be entitled to receive an additional payment by
the Executive of any Excise Tax on the Total Payments as well as all income
taxes imposed on the Excise Tax Restoration Payment, any Excise Tax imposed on
the Excise Tax Restoration Payment and any interest or penalties imposed with
respect to taxes on the Excise Tax Restoration Payment or any Excise tax.
5.5. RELEASE. The parties acknowledge and agree that the payments
and benefits to the Executive described in Sections 5.3. and 5.4. shall be
contingent upon the Executive's signing and executing a General Release of
Claims acceptable to both the Company and him. The parties further acknowledge
and agree that Executive shall not be required to seek other employment or take
other action in order to mitigate his damages or to be entitled to the benefits
and payments under Sections 5.3 and 5.4 of this Agreement. The Company is not
entitled to set off against such benefits and payments due, or any other amounts
of money payable to the Executive, any amounts he earns in other employment or
engagement after the termination of his employment by the Company without Cause
or by him for Good Reason, or any amounts that he might or could have earned in
other employment or engagement had he sought such other employment or
engagement.
5.6. TERMINATION AT THE ELECTION OF THE EXECUTIVE. If the
Executive's employment is terminated at his election pursuant to Section 4.6.,
the Company shall pay to the Executive the compensation and benefits which would
otherwise be payable to him under Section 3 through the last day of his actual
employment with the Company. However, the Executive will not be entitled to any
Bonus payment for the fiscal year in which his employment is terminated at his
election. Executive shall maintain all of his rights in connection with his
vested stock options. Such options shall be exercisable within the earlier of:
(a) the time period provided for under Exhibit A hereto; or (b) ninety (90) days
from the date of such termination.
6. CONFIDENTIAL MATERIALS AND INFORMATION. Executive acknowledges
that during his employment with the Company, he will occupy a position of trust
and confidence with respect to the Company's affairs and business and will have
access to the Company's trade secrets and other confidential and/or proprietary
information ("Confidential Information"). Executive agrees that, both during his
employment and after the termination of his employment, he will use his best
efforts and utmost diligence to preserve, protect, and prevent the disclosure of
such Confidential Information. Executive acknowledges that as used herein,
Confidential Information includes, but is not limited to, all methods,
processes, techniques, practices, product designs, pricing information, billing
histories, customer requirements, customer lists, employee lists, salary
information, personnel matters, financial data, operating results, plans,
contractual relationships, projections for new business opportunities for new or
developing businesses, and technological innovations in any stage of
development. Confidential Information also includes, but is not limited to, all
notes, records, software, drawings, handbooks, manuals, policies, contracts,
memoranda, sales files, or any other documents generated or compiled by any
employee of the Company. Such information is, and shall remain, the exclusive
property of the Company, and Executive agrees that he shall promptly return all
such information to the Company upon termination of his employment. Any
information publicly available or generally
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known within the industry or trade in which the Company operates and competes is
not Confidential Information.
6.1. Executive Obligations. The Executive agrees to take the
following steps to preserve the confidential and proprietary nature of the
Company's Confidential Information and materials.
(a). Non-Disclosure. During and after his employment with
the Company, the Executive will not use, disclose or transfer any of the
Company's Confidential Information or materials other than as authorized by the
Company within the scope of his duties with the Company, and will not use in any
way other than in Company's business any of the Company's Confidential
Information, including information or material received by the Company from
others and intended by the Company to be kept in confidence by its recipients.
The Executive understands that he is not allowed to sell, license or otherwise
exploit any products which embody or otherwise exploit in whole or in part any
of the Company's Confidential Information or materials, except on behalf of the
Company.
(b). Disclosure Prevention. The Executive will take all
reasonable precautions to prevent the inadvertent or accidental exposure of the
Company's Confidential Information.
(c). Removal of Material. The Executive will not remove any
of the Company's Confidential Information from the Company's premises or make
copies of such materials except for use in the Company's business.
(d). Return All Materials. The Executive will return to the
Company all the Company's Confidential Information, materials and copies of the
foregoing at any time upon the request of the Company, in any event and without
such request, prior to the termination of Executive's employment by Company.
Executive agrees not to retain any copies of any of the Company's Confidential
Information and materials after his termination of employment for any reason.
(e). Computer Security. During his employment with the
Company, the Executive agrees only to use computer resources (both on and off
Company's premises) for which he has been granted access and then only to the
extent authorized. The Executive agrees to comply with all Company policies and
procedures, including, but not limited to, those concerning computer security.
The Company recognizes and agrees that the Executive may use such computer
resources for de minimis personal use.
6.2. Prior Propriety Information, The Executive agrees not to
knowingly disclose to the Company or knowingly use in the Company's business any
information or material obtained prior to his employment with the Company
relating to the business of any third person and intended by that person not to
be disclosed to the Company. The Executive represents that to the best of his
knowledge the Executive's performance of all of the terms of this Agreement and
as an Executive of the Company does not and will not breach
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any agreement to keep in confidence proprietary information acquired by the
Executive prior to the Executive's employment by the Company. Further, Executive
represents that to the best of his knowledge the performance of his duties with
the Company will not breach any contractual or other legal obligation to any
third person.
7. POST EMPLOYMENT OBLIGATIONS.
7.1. Covenants. The Executive acknowledges: (a) his services to
the Company will be special and unique; (b) his work for the Company will allow
him access to the Company's confidential information and customers; (c) the
Company's business is national and international in scope; (d) the Company would
not have employed him but for the covenants and agreements contained in this
Section 7; and (e) the agreements and covenants contained in this Section 7 are
essential to protect the business and goodwill of the Company. In order to
induce the Company to employ him and to enter into this Agreement, the Executive
covenants and agrees that:
7.2. Non-Compete. During the term of his Employment with the
Company and for a period of twenty-four (24) months after his termination ("the
Restricted Period"), for whatever reason, the Executive will not directly or
indirectly, individually or as an officer, director, Executive, shareholder
(except if he is a shareholder of less than 1% of a publicly traded security),
consultant, contractor, partner, joint venturer, agent, equity owner, or in any
capacity whatsoever, engage in or promote any business that is competitive with
the business of the Company in any geographic area in which the Company does or
plans to do business while the Executive was employed, including but not limited
to the United States and Canada. A business competitive with the business of the
Company is defined as a business engaged in the manufacture, distribution or
wholesale or retail sale of new or used truck trailers and related parts and
service businesses.
7.3. Non-Solicitation and Non-Interference with Customers and
other Business Relationships. During the Restricted Period, the Executive will
not directly or indirectly knowingly solicit (other than on behalf of the
Company) business or contracts for any products or services of the type
provided, developed or under development by the Company during the Executive's
employment by the Company, from or with (i) any person or entity which was a
customer of the Company for such products or services as of, or within one year
prior to the Executive's date of termination with the Company, or (ii) any
prospective customer which the Company was soliciting as of, or within one year
prior to the Executive's termination. Additionally, during the Restricted
Period, the Executive will not directly or indirectly contract with any such
customer or prospective customer for any product or service of the type
provided, developed or which was under development by the Company during the
Executive's employment with the Company. Further, the Executive shall not during
the Restricted Period knowingly interfere or attempt to interfere with any
transaction, agreement or business relationship in which the Company was
involved during the Executive's employment with the Company.
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7.4. Non-Solicitation of Employees and Contractors. During the
Restricted Period, the Executive shall not knowingly solicit any person employed
by the Company, or who within 180 days of termination of Executive's employment
had been so employed by the Company, to leave the employ of the Company.
Further, during the Restricted Period, the Executive will not knowingly solicit
any contractor of the Company to terminate or reduce its business with the
Company.
7.5. Executive Acknowledgment. The Executive acknowledges that
the geographic boundaries, scope of prohibited activities, and time duration of
the preceding paragraphs are reasonable in nature and no broader than are
necessary to protect the legitimate business interests of the Company.
7.6. Enforcement. The parties agree that if a Court of competent
jurisdiction finds that any term of this Section 7 is for any reason excessively
broad in scope or duration, such term shall be construed in a manner to enable
it to be enforced to the maximum extent possible. Further, the covenants in this
Section 7 shall be deemed to be a series of separate covenants and agreements,
one for each and every region of each state and political division worldwide.
If, in any judicial proceeding, a court of competent jurisdiction shall refuse
to enforce any of the separate covenants deemed included herein, then at the
option of the Company, wholly unenforceable covenants shall be deemed eliminated
from the provision hereof for the purpose of such proceeding to the extent
necessary to permit the remaining separate covenants to be enforced in such
proceeding.
8. REMEDIES. Executive acknowledges that the restrictions contained
in Sections 6 and 7 of this Agreement are reasonable and necessary to protect
the business and interests of the Company and that any violation of these
restrictions would cause the Company substantial irreparable injury.
Accordingly, the Executive agrees that a remedy at law for any breach of the
foregoing covenants would be inadequate and that the Company, in addition to any
other remedies available, shall be entitled to obtain preliminary and permanent
injunctive relief to secure specific performance of such covenants and to
prevent a breach or contemplated breach of this Agreement without the necessity
of proving actual damage. It is the express intention of the parties that the
obligations of Sections 6, 7, and 8 of this Agreement shall survive its
expiration.
9. NOTICES. All required or permitted notices under this Agreement
shall be in writing and shall be effective upon personal delivery or three (3)
business days after being deposited in the United States Post Office, by
registered or certified mail, postage prepaid, addressed to the other party at
the address shown on the signature page hereof, or at such other address as
either party may designate to the other in accordance with this Section 9, with
a copy to counsel for the Executive, addressed as follows:
Xxxx X. Xxxxxx
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and a copy to counsel for the Company, addressed as follows:
Chief Legal Officer
Wabash National Corporation
P.O. Box 6129
0000 Xxxxxxxx Xxxx. Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
10. ATTORNEY'S FEES. The Company shall pay the Executive's reasonable
attorneys' fees, not to exceed $10,000, incurred in reaching this Agreement.
11. ENTIRE AGREEMENT. This Agreement (including the Exhibit to the
Agreement) constitutes the entire agreement between the parties and supersedes
all prior agreements and understandings, whether written or oral, relating to
the subject matter of this Agreement.
12. AMENDMENT. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Executive.
13. GOVERNING LAW. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Indiana, regardless of the
laws that might otherwise govern under applicable principles of conflicts of
law.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business, provided, however, that
the obligations of the Executive are personal and shall not be assigned by him.
15. MISCELLANEOUS.
15.1. No delay or omission by the Company or the Executive in
exercising any right under this Agreement shall operate as a waiver of that or
any other right. A waiver or consent given by the Company or the Executive on
any one occasion shall be effective only in that instance and shall not be
construed as a bar or waiver of any right on any other occasion.
15.2. The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
15.3. The unenforceability of any provision of this Agreement
shall not affect the enforceability of any other provision of this Agreement.
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15.4. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
16. INDEMNIFICATION. The Company, to the extent that it does so
generally for its officers and directors and to the extent permitted by its
corporate by-laws, shall provide the Executive with directors and officers
liability insurance and shall indemnify, defend, and hold the Executive harmless
from and against any and all demands, actions, claims, suits, liabilities,
losses, damages, fees (including reasonable attorney's fees) and expenses
relating to any acts or omissions in the course or scope of the duties he
performs on behalf of the Company while employed by it and/or while serving as
an officer and/or director of the Company. The provisions of this Section 16,
though only with respect to acts or omissions by the Executive while still
employed by the Company, shall survive the expiration of this Agreement or
the termination of Executive's employment with the Company for any reason.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
WABASH NATIONAL CORPORATION
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
/s/ XXXXXXX X. XXXXXXX
----------------------------------
By: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
XXXX XXXXXX
Xxxx X. Xxxxxx
/s/ XXXX XXXXXX
----------------------------------
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