EMPLOYMENT AGREEMENT
AN AGREEMENT made as of the 31st day of August, 1995, by and
between OSHKOSH TRUCK CORPORATION, a Wisconsin corporation (the
"Company"), and XXXX X. XXXXXXXXX (the "Executive").
W I T N E S S E T H :
WHEREAS, the Executive has been serving as Executive Vice
President of the Company and as President of Oshkosh Truck International
Inc., a subsidiary of the Company ("Oshkosh International");
WHEREAS, the Company desires to continue to retain the services
of the Executive, and the Executive desires to continue to be employed by
the Company, on the terms and conditions set forth in this Agreement; and
WHEREAS, in consideration of the Company's commitment to employ
the Executive during the term of this Agreement, the Executive is willing
to agree to the provisions respecting noncompetition and protection of
Confidential Information (as defined below) set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. Employment and Duties. The Company hereby agrees to
continue to employ the Executive, and the Executive hereby agrees to
continue to be employed by the Company. The Executive's current
responsibilities include leadership of the Company's defense business
strategy; marketing and planning for both domestic and foreign sales of
military products; and responsibility for all international strategy,
marketing and sales. The Executive also serves as a member of the
Chairman's Council, the primary executive advisory council to the
Company's Chairman and Chief Executive Officer.
2. Term. The employment of the Executive will continue until
the occurrence of the first of the following events:
(a) The last day of the Company's 1997 fiscal year, subject to
extension as described below; or
(b) The Executive's death; or
(c) The Executive shall have become totally disabled within the
meaning of the Oshkosh Truck Corporation Long Term Disability Program for
Salaried Employees (the "LTD Program") such that the Executive is entitled
to receive benefits under the LTD Program; or
(d) Termination of this Agreement under Section 8 hereof.
If the Executive's employment continues following the date and extension
identified in clause (a) above and a Renewal Notice is not provided, then
for so long as the Executive is employed by the Company the Executive
shall be an at-will employee. The provisions of Sections 6, 7 and 10
shall survive the expiration of the term of this Agreement.
The last date on which the Executive's employment hereunder may
terminate pursuant to paragraph (a) may be extended at successive one-year
intervals if the Company has provided a written notice of renewal (a
"Renewal Notice") to the Executive on or before June 30 in the year prior
to the year in which the Executive's employment hereunder would terminate
but for the application of this sentence. As an example, if the Company
gives a Renewal Notice to the Executive on or before June 30, 1996, the
date set forth in Section 2(a) shall be changed from the last day of the
Company's 1997 fiscal year to the last day of the Company's 1998 fiscal
year. If a Renewal Notice is not given within the prescribed time and
unless otherwise agreed in writing by the parties, then the Executive's
employment hereunder may terminate in accordance with the provisions of
this Section 2 (as paragraph (a) may have been previously extended by the
parties) and Section 9. In addition, the Executive may terminate his
employment hereunder at any time upon thirty (30) days' written notice to
the Company.
3. Compensation. During the term of this Agreement, the
Executive shall be entitled to the following compensation for services
rendered to the Company and Oshkosh International:
(a) Base Salary. The Executive shall receive a base salary,
payable not less frequently than monthly in arrears, at the annual rate of
$170,000. The Board of Directors of the Company shall review the
Executive's base salary annually to determine whether such salary should
be increased based upon the Company's performance and/or the Executive's
performance and upon such other criteria as the directors shall consider
in their sole discretion. (In this Agreement, the term "Base Salary"
shall mean the amount established and adjusted from time to time pursuant
to this paragraph (a).)
(b) Annual Bonus. The Executive shall be entitled to
participate in the bonus plan for senior management personnel of the
Company, subject to all of the terms and conditions of the plan. In the
bonus plan, the Executive will have a bonus potential of 50% of his Base
Salary unless modified by the Board of Directors in accord with an overall
bonus modification for all senior executives.
(c) Vacations and Holidays. The Executive shall be entitled to
receive 20 days of paid vacation per year together with the paid holidays
available to all other senior management personnel.
(d) Fringe Benefits. The Executive shall be entitled to
participate in all fringe benefit plans and programs in effect from time
to time for, and on the same basis as, all other senior executives of the
Company, including medical and dental insurance, expense reimbursements,
pension and retirement benefits and other similar benefits.
4. Reimbursements. The Company shall reimburse the Executive
for actual out-of-pocket costs incurred by him in the course of carrying
out his duties hereunder, such reimbursements to be made in accordance
with the policies and procedures of the Company in effect from time to
time.
5. Withholding. All payments under this Agreement shall be
subject to withholding or deduction by reason of the Federal Insurance
Contributions Act, the federal income tax and state or local income tax
and similar laws, to the extent such laws apply to such payments.
6. Noncompetition. In consideration of the Company's
commitment to employ the Executive during the term of this Agreement, the
Executive agrees that, except in the event of a material breach of this
Agreement by the Company, for a period of one year after the termination
of the Executive's active employment with the Company (whether such
termination occurs before or after the expiration of the term of this
Agreement), he shall not, except as permitted by the Company's prior
written consent, engage in, be employed by, or in any way advise or act
for, or have any financial interest in, any business that, as of the date
of such termination, is engaged directly or indirectly in a business that
is similar or identical to any business engaged in by the Company or any
of its subsidiaries that was within the scope of the Executive's duties,
activities or knowledge. The geographic scope of the Executive's
agreement not to compete shall extend to all of the United States and to
any other country if the Company has directly or indirectly (i) sold
product for delivery to a customer in that country during the 36 months
preceding the date of termination, (ii) actively sought to sell product
for delivery to any customer in that country during such period or
(iii) made plans, in which the Executive participated, to sell product for
delivery to any customer in that country during such period, whether or
not the Company pursued or abandoned such plans prior to the date of
termination. The ownership of minority and noncontrolling shares of any
corporation whose shares are listed on a recognized stock exchange or
traded in an over-the-counter market, even though such corporation may be
a competitor of the Company or any subsidiary specified above, shall not
be deemed as constituting a financial interest in such competitor. This
covenant shall survive the termination of this Agreement.
7. Confidential Information.
(a) Defined. "Confidential Information" shall mean ideas,
information, knowledge and discoveries, whether or not patentable, that
are not generally known in the trade or industry and about which the
Executive has knowledge as a result of his employment with the Company,
including without limitation defense product engineering information,
marketing, sales, distribution, pricing and bid process information,
product specifications, manufacturing procedures, methods, business plans,
marketing plans, internal memoranda, formulae, trade secrets, know-how,
research and development and other confidential technical or business
information and data. Confidential Information shall not include any
information that the Executive can demonstrate is in the public domain by
means other than disclosure by the Executive.
(b) Nondisclosure. For a period of five years after the
termination of the Executive's active employment with the Company (whether
such termination occurs before or after the expiration of the term of this
Agreement) and indefinitely thereafter in respect of any Confidential
Information that constitutes a trade secret or other information protected
by law, the Executive will keep confidential and protect all Confidential
Information known to or in the possession of the Executive, will not
disclose any Confidential Information to any other person and will not use
any Confidential Information, except for use or disclosure of Confidential
Information for the exclusive benefit of the Company as it may direct or
as necessary to fulfill the Executive's continuing duties as an employee
of the Company.
(c) Return of Property. All memoranda, notes, records, papers,
tapes, disks, programs or other documents or forms of documents and all
copies thereof relating to the operations or business of the Company or
any of its subsidiaries that contain Confidential Information, some of
which may be prepared by the Executive, and all objects associated
therewith in any way obtained by him shall be the property of the Company.
The Executive shall not, except for the use of the Company or any of its
subsidiaries, use or duplicate any such documents or objects, nor remove
them from facilities and premises of the Company or any subsidiary, nor
use any information concerning them except for the benefit of the Company
or any subsidiary, at any time. The Executive will deliver all of the
aforementioned documents and objects, if any, that may be in his
possession to the Company at any time at the request of the Company.
8. Termination for Cause.
(a) By the Company. The Executive agrees that this agreement
may be terminated by the Company at any time for theft, dishonesty,
fraudulent conduct, disclosure of trade secrets, gross dereliction of duty
or other grave misconduct on the part of the Executive which is
substantially injurious to the Company.
(b) By the Executive. The Executive may terminate this
Agreement at any time in the event of a material breach by the Company of
the terms and conditions of this Agreement.
9. Continuing Liability. Unless this Agreement is terminated
by the Company as provided in Section 8 and except in the event of the
voluntary resignation (other than pursuant to Section 8), retirement,
disability, or death of the Executive, the Company shall have no right to
terminate the Agreement without the continuing liability to the Executive
for the unexpired term for the Base Salary and fringe benefits provided in
this Agreement, in which event:
(a) An amount equal to the largest bonus paid or payable to the
Executive by the Company with respect to any 12 consecutive month period
during the three years ending with the date of termination of this
Agreement shall be considered an increase in Base Salary as of January 1
of the year in which such termination occurs for the purpose of
determining continued liability to the Executive; and
(b) The Company shall provide the Executive with fringe
benefits, but in no event shall fringe benefits be reduced in type or
amount from the level of fringe benefits being received by the Executive
as of the date of termination of this Agreement.
The Company shall have a continuing liability to the Executive in the
event the Executive terminates this Agreement pursuant to the provisions
of Section 8(b) unless the Board of Directors of the Company shall
determine in good faith that there has not been such a material breach by
the Company as to constitute good cause for termination by the Executive
pursuant to Section 8(b). In the event of such determination, the
Executive shall be deemed to have voluntarily resigned without cause;
provided, however, that any such determination by the Board of Directors
shall be subject to judicial review.
10. Successors.
(a) This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors.
11. Miscellaneous.
(a) Severability. This Agreement is to be governed by and
construed according to the laws of the State of Wisconsin. If any
provision of this Agreement shall be held invalid and unenforceable for
any reason whatsoever, such provision shall be deemed deleted and the
remainder of the Agreement shall be valid and enforceable without such
provision.
(b) Amendments. This Agreement may be modified only in writing
signed by the parties hereto.
(c) Notices. All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the other party
or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
(i) If to the Executive:
Xxxx X. Xxxxxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
or, in person, by hand to the Executive at the
Executive's place of employment
(ii) If to the Company:
Oshkosh Truck Corporation
0000 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Attn: Corporate Secretary
or to such other address as either party shall have furnished to the other
in writing in accordance herewith. Notices and communications shall be
effective when personally delivered or on the second business day
following the day on which such item was mailed.
(d) Entire Agreement. This Agreement contains the entire
understanding between the Company and the Executive with respect to the
subject matter hereof, except for the following additional agreements
between the Company and the Executive:
(i) Key Executive Employment and Severance Agreement
(the "KEESA");
(ii) Any stock option agreement under the Company's
1990 Incentive Stock Plan, as amended; and
(iii) Any award agreement under the Company's 1994
Long-Term Incentive Compensation Plan.
Anything in this Agreement to the contrary notwithstanding, in the event
of a Change in Control of the Company (as defined in the KEESA) at a time
that the KEESA is in effect, then the rights and obligations of the
Company and the Executive in respect of the Executive's employment shall
be determined in accordance with the KEESA rather than under this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the day and year first above written.
OSHKOSH TRUCK CORPORATION
By: /s/ R. Xxxxxx Xxxxxxx
R. Xxxxxx Xxxxxxx
Title: Chairman and Chief Executive
Officer
Date: September 18, 1995
Attest: /s/ Xxxxxx X. Xxxxxxxxxxx
AGREED TO:
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
Title: Executive Vice President and
President - Oshkosh Truck
International
Date: August 21, 1995
Attest: /s/ Xxxxxx X. Xxxxxxxxxxx
