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EXHIBIT 10.01
CONSULTING AND
NON-COMPETITION AGREEMENT
THIS CONSULTING AND NON-COMPETITION AGREEMENT ("Agreement") is made and
entered into as of the 16th day of July, 2001 (the "Effective Date"), by and
between Wabash National Corporation, a Delaware corporation having its principal
place of business located at 0000 Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx
00000 (the "Company"), and Xxxxxx X. Xxxxxxx, an individual residing at 0000
Xxxxxx Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx 00000 ("Consultant").
WITNESSETH:
WHEREAS, Consultant has been an employee, an officer and a member of
the Board of Directors of the Company and/or certain of its subsidiaries for a
number of years;
WHEREAS, Consultant is resigning from his positions as an employee,
officer and/or director of the Company and each of its subsidiaries, other than
his membership on the Board of Directors of the Company, as of the Effective
Date; and
WHEREAS, upon the terms and conditions set forth below, the Company
desires to retain the services of Consultant, and Consultant desires to serve as
a consultant to the Company;
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Consultant hereby
agree as follows:
AGREEMENT
SECTION 1. ENGAGEMENT. On the terms and conditions hereinafter set
forth, during the Consulting Term (as defined below), the Company hereby engages
Consultant to provide, and Consultant hereby agrees to provide, to the Company
or any entity controlling, controlled by or under common control with the
Company (each, an "Affiliate") the Services as described in Section 2 below.
SECTION 2. CONSULTING SERVICES.
(a) During the period commencing on the date hereof (the "Effective
Date") and continuing for a period of three (3) years thereafter, unless earlier
terminated pursuant to Section 6 hereof (the "Consulting Term"), Consultant
will, at the request of the officers of the Company from time to time, provide
consulting services to the Company or any Affiliate of the Company with respect
to all aspects of their respective business affairs, including without
limitation, with respect to sales activities and customer and dealer
relationships of the Company or any of its Affiliates (collectively, the
"Services").
(b) Consultant shall provide the Services at such times and at such
locations as may be reasonably requested by the Company; provided, however, that
if a location for provision of the Services is not specified by the Company,
Consultant shall provide the Services from a location of his own selection that
is separate and distinct from any office or facility of the Company or
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any of its Affiliates. Consultant will keep the Company informed with respect to
the Services through monthly reports, telephone calls, meetings or other forms
of communication as Consultant and the Company mutually agree.
(c) Consultant shall not engage in any activity which would interfere
with the timely and faithful performance of the Services. Nothing in this
Section 2(c), however, shall be construed to prevent Consultant from engaging in
additional activities in connection with personal investments, business
investments and community affairs that are not inconsistent with and do not
interfere with the performance by Consultant of the Services.
(d) Consultant shall devote such time and diligent effort to the
Services as may be required to fully discharge Consultant's responsibilities and
shall perform the Services in a competent and professional manner, consistent
with generally accepted standards of decorum and conduct and sound business
practices.
(e) Consultant shall at all times throughout the Consulting Term
maintain Consultant's own separate and distinct place of business, which may be
Consultant's residence, and shall not use any of the offices and facilities of
the Company or any of its Affiliates on a regular basis in performance of the
Services. Consultant shall not be entitled to use the secretarial services, word
processing services or any other services provided by the Company's staff or the
staff of any of the Company's Affiliates. Consultant shall purchase Consultant's
own equipment to be used in the provision of the Services, including without
limitation, computer equipment, word processing equipment, copiers, pagers, fax
machines, calculators and office supplies, and shall be responsible for securing
at his own cost any secretarial or administrative assistance he shall require in
performance of the Services.
(f) Consultant shall retain and exercise full control over the order,
sequence, details, manner and means by which Consultant provides the Services.
Neither the Company nor any of its Affiliates shall have the right to control or
direct the order, sequence, details, manner or means by which Consultant
provides the Services except as provided in this Agreement.
SECTION 3. PAYMENT.
(a) Monthly Compensation. Subject to the terms and conditions of this
Agreement, the Company will pay to Consultant a fixed monthly consulting fee
during the Consulting Term as follows: (i) during the first (1st) full year of
the Consulting Term, the Company shall pay to Consultant the amount of Fifty
Thousand Dollars ($50,000.00) per month, payable on the fifteenth (15th) day of
each month, or the next business day thereafter if such is not a business day;
(ii) during the second (2nd) full year of the Consulting Term, the Company shall
pay to Consultant the amount of Forty One Thousand Six Hundred Sixty Six and
67/100 Dollars ($41,666.67) per month, payable on the fifteenth (15th) day of
each month, or the next business day thereafter if such is not a business day;
and (iii) during the third (3rd) full year of the Consulting Term, the Company
shall pay to Consultant the amount of Thirty Three Thousand Three Hundred Thirty
Three and 33/100 Dollars ($33,333.33) per month, payable on the fifteenth (15th)
day of each month, or the next business day thereafter if such is not a business
day.
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(b) Automobile. As soon as practicable following the Effective Date,
the Company shall transfer to Consultant good and marketable title to the
automobile owned by the Company and used by Consultant prior to the date of this
Agreement. Such automobile shall be transferred by the Company to Consultant "as
is", with all defects, and the Company makes no representations and/or
warranties as to the condition of such automobile. Consultant shall pay all
transfer, sales and use taxes in connection with the transfer contemplated by
this Section 3(b).
(c) COBRA Expenses. The Company shall reimburse Consultant for the
amount of any expenses paid by Consultant pursuant to Title X of the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and
attributable to continuance of coverage under the Company's health and
hospitalization plan for the period commencing on the Effective Date and ending
on November 31, 2002.
(d) Expenses. Consultant shall be solely responsible for all costs and
expenses incurred by him in connection with the provision of the Services;
provided, however, that the Company will reimburse Consultant for reasonable and
necessary business expenses of Consultant during the Consulting Term for travel
(at the request of the Company) and related items incurred in connection with
the performance of Consultant's duties hereunder, and which are consistent with
such guidelines as the Company may from time to time establish and as shall be
applicable to employees of the Company.
(e) Benefits. Consultant will not be entitled to any remuneration for
the Services except as specifically set forth in Sections 3(a), 3(b) and 3(c).
Consultant will not be entitled to receive any insurance of any kind from or
through the Company, or any of its Affiliates and will not be entitled to
participate in any pension, retirement, deferred compensation or other benefit
plans, or any other employee benefits generally provided by the Company or any
of its Affiliates to their respective employees. The foregoing shall not
constitute a release by Consultant of the rights, if any, he may have to
participate in any employee benefit plans of the Company or its Affiliates as a
former employee of the Company or any of its Affiliates.
(f) Acknowledgment. The parties acknowledge that the compensation
provided in this Section 3 was negotiated at arm's-length and represents the
fair market value for the Services provided by Consultant hereunder.
SECTION 4. INDEPENDENT CONTRACTOR RELATIONSHIP. The parties hereto
mutually agree, intend and understand that, in performance of the Services under
this Agreement, Consultant at all times will act and perform solely as an
independent contractor providing the Services to the Company or any of its
Affiliates, and not as an employee of the Company or any of its Affiliates.
Notwithstanding any other provision of this Agreement, this Agreement shall not
be deemed to represent or evidence the hiring of Consultant by any party as an
employee, nor does it constitute a contract of employment. No acts or assistance
given to Consultant by the Company or any of its Affiliates shall be construed
to alter their independent contractor relationship, and nothing contained in
this Agreement shall be construed to place the parties in a relationship of
partners, joint venturers, principal and agent or franchisor and franchisee.
Consultant will make no representations to third parties inconsistent with the
relationship established by this Agreement. All amounts payable hereunder to
Consultant shall be paid without any reduction by the Company for any taxes,
including but not limited to foreign or
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federal, state or local income, employment, self-employment or withholding
taxes, it being the intention of the parties that Consultant shall be solely
responsible for the payment of all taxes, fines, penalties or assessments
imposed on or related to Consultant's activities pursuant to this Agreement.
SECTION 5. RESIGNATIONS; NO LIABILITY.
(a) Consultant hereby resigns his positions as an employee, officer
and/or director of the Company and each of its Affiliates, to the extent
applicable, as of 12:01 a.m. on the Effective Date; provided, however, that
Consultant is not resigning from his position as a member of the Board of
Directors of the Company. No obligation on the part of the Company shall exist
to maintain Consultant as a member of the Board of Directors of the Company.
Consultant hereby agrees to promptly return to the Company any and all property
of the Company or any of its Affiliates in his possession, custody or control.
(b) Consultant hereby acknowledges and agrees that he has voluntarily
resigned from, and terminated his employment with, and his status as an officer
and/or director of, the Company and each of its Affiliates, except as provided
above, and hereby further acknowledges and agrees that neither the Company nor
any of its Affiliates shall have any obligations or liabilities of any kind or
nature in connection with such resignation and termination.
(c) Consultant hereby acknowledges that, as of the Effective Date,
Consultant has been paid all monies due to him from the Company or any of its
Affiliates on account of salary, wages, compensation, commissions, bonuses,
vacation, benefits and all other entitlements in respect of Consultant's
services to the Company or any of its Affiliates through and including the
Effective Date, excluding any amount payable pursuant to the provisions of this
Agreement.
SECTION 6. TERMINATION.
(a) Termination for Cause. The Company may terminate the engagement of
Consultant pursuant to Section 1 only for Cause. Termination for "Cause" shall
mean termination by the Company for any one or more of the following reasons:
(a) any violation of any of the provisions of Section 7 or Section 8 of this
Agreement; or (b) any refusal by Consultant to perform his duties hereunder upon
request of the Company.
(b) Resignation by Consultant. Consultant may resign from Consultant's
engagement pursuant to Section 1 at any time by providing at least ninety (90)
days' written notice to the Company. The effective date of the resignation shall
be stated in the notice.
(c) Termination by Mutual Agreement; Death; Permanent Disability. The
engagement of Consultant pursuant to Section 1 may be terminated at any time by
mutual agreement of the parties. The engagement of Consultant pursuant to
Section 1 will automatically terminate if Consultant dies or becomes Permanently
Disabled during the Consulting Term. Consultant shall be deemed to have become
"Permanently Disabled" for purposes of this Section 6(c) if Consultant becomes
unable to perform the Services for any period of at least six (6) consecutive
months.
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(d) Rights and Obligations Upon Termination. Upon any termination of
the engagement of Consultant pursuant to Section 1 under the terms of this
Section 6, the obligations of Consultant to provide the Services, and the
obligations of the Company to continue to pay Consultant pursuant to Section
3(a), shall terminate immediately upon any such event, and neither party will
have any further rights against or owe any further obligations to the other
party, except for (i) rights or obligations arising out of a breach of the terms
hereof, (ii) rights to the compensation due and payable under Section 3 through
the date of termination of the engagement of Consultant, and (iii) the rights
and obligations of the parties under Section 7 and Section 8 of this Agreement.
SECTION 7. NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY.
(a) Non-Competition. For a period of three (3) years following the
Effective Date (the "Restricted Period"), Consultant hereby covenants and agrees
with the Company that Consultant shall not, directly or indirectly, for himself
or on behalf of or in conjunction with any individual, company, partnership,
limited liability company, corporation, joint venture, strategic alliance or
business or other entity of whatever nature (each, a "Person"), engage in the
business of, or own, manage, operate, join, control, lend money or other
assistance to, or participate in or otherwise be connected with (as an
individual, officer, director, manager, employee, partner, stockholder, trustee,
proprietor, joint venturer, consultant, member, agent or otherwise), any Person
that is, directly or indirectly, (i) involved in the business of designing,
manufacturing, marketing and/or financing standard or customized truck trailers
(or any related services), (ii) involved in any business which competes at any
time during the Restricted Period with any of the respective businesses of the
Company or any of its Affiliates, or (iii) involved in any other business in
which the Company or any of its Affiliates is engaged as of the Effective Date
or at any time during the Restricted Period. Because of the nature of the
business of the Company and its Affiliates, the potential irreparable harm that
will occur to the Company and its Affiliates as a result of competition by
Consultant is not necessarily tied to the physical location or presence of the
Company, any of its Affiliates, Consultant, or any competitor or customer of the
Company or any of its Affiliates. Therefore, the non-competition restrictions
set forth in this Section 7(a) shall apply to the broadest enforceable
geographic area, as follows: any state, commonwealth or other jurisdiction
within Canada or the United States of America (or any portion thereof). The
obligations of Consultant pursuant to this Section 7(a) shall survive any
termination of the engagement of Consultant pursuant to Section 6.
(b) Non-Solicitation. During the Restricted Period, Consultant hereby
covenants and agrees with the Company that Consultant shall not, directly or
indirectly (as an individual, officer, director, member, manager, partner,
shareholder, employee, trustee, proprietor, joint venturer, consultant, agent or
in any other capacity whatsoever), (i) interfere with the contractual
relationship of the Company or any of its Affiliates with any of the Customers
(as defined below) of the Company or any of its Affiliates, (ii) attempt to
provide (or solicit to provide) products or services to such Customers which are
the same as or substantially similar to those products or services provided by
the Company or any of its Affiliates pursuant to the existing contractual
arrangements with such Customers, (iii) hire, employ or attempt to hire or
employ any person who is or was an employee of the Company or any of its
Affiliates at any time prior to or during the Restricted Period, or (iv) in any
way (a) cause or assist or attempt to cause or assist any person who is an
employee of the Company or any of its Affiliates at any time prior to or during
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the Restricted Period to leave the employ of the Company or any of its
Affiliates or (b) directly or indirectly seek to solicit, induce, bring about,
influence, promote, facilitate, or encourage any person who is an employee of
the Company or any of its Affiliates at any time prior to or during the
Restricted Period to leave the employ of the Company or any such Affiliate to
join a competitor or otherwise. "Customer" of the Company or any of its
Affiliates shall mean any Person which, within the twelve (12) month period
immediately preceding the date in question, used or purchased, or contracted to
use or purchase, any products or services of the Company or any of its
Affiliates. The obligations of Consultant pursuant to this Section 7(b) shall
survive any termination of the engagement of Consultant pursuant to Section 6.
(c) Confidentiality.
(i) Obligations. Consultant recognizes and acknowledges that the
services he has performed and will perform for the Company
and/or any of its Affiliates are special, unique, and
extraordinary in that, by reason of his previous status as an
employee, officer and director of the Company and/or certain
of its Affiliates and his continued provision of the Services,
he has had and will continue to have access to confidential
and proprietary information of a special and unique nature and
value relating to the business of the Company and its
Affiliates, the use or disclosure of which could cause the
Company and its Affiliates immeasurable and substantial loss
and damages for which no remedy at law would be adequate.
Accordingly, Consultant shall hold all Confidential
Information (as defined below) in strict confidence and solely
for the benefit of the Company and its Affiliates and shall
not use or disclose any Confidential Information to anyone
except the Company or its Affiliates or their respective
authorized representatives. Consultant shall use such
Confidential Information only in the course of performance of
the Services and for no other purpose. Consultant shall follow
all policies and procedures of the Company to protect all
Confidential Information and shall take any additional
precautions necessary under the circumstances to preserve and
protect the use or disclosure of any Confidential Information
at all times. The obligations of Consultant set forth in this
Section 7(c)(i) shall survive any termination of the
engagement of Consultant pursuant to Section 6 and shall
survive indefinitely thereafter.
(ii) Ownership of Confidential Information. All Confidential
Information is and shall remain the exclusive property of the
Company and its Affiliates, as applicable, whether or not
prepared in whole or in part by Consultant and whether or not
disclosed to or entrusted to the custody of Consultant. Upon
the termination of the engagement of Consultant under this
Agreement for any reason, or upon the request of the Company,
at any time, Consultant shall promptly deliver to the Company
all documents, tapes, disks, or other storage media and any
other materials, and all copies thereof, in whatever form, in
the possession of, or under the custody or control of,
Consultant and pertaining to the business of the Company or
any of its Affiliates, including, but not limited to, any
containing
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Confidential Information, and all other property of the
Company or any of its Affiliates in Consultant's possession or
under Consultant's custody or control (the "Company
Documents"). Consultant shall use the Company Documents and
information contained therein only in the course of performing
the Services and for no other purpose. Consultant shall not
use or disclose any Company Documents or copies of Company
Documents to anyone except to authorized representatives of
the Company or its Affiliates. The obligations of Consultant
set forth in this Section 7(c)(ii) shall survive any
termination of the engagement of Consultant pursuant to
Section 6 and shall survive indefinitely thereafter.
(iii) Definition. "Confidential Information" shall mean information
about the Company or any of its Affiliates disclosed to or
known by Consultant as a consequence of Consultant's
performance of the Services or Consultant's relationship with
the Company as an employee, officer, director or shareholder,
or former employee, officer, director or shareholder, or
otherwise, that in any way relates to the business of the
Company or any of its Affiliates and regardless of the format
in which it is presented or embodied (written, graphic,
electromagnetic or otherwise). Confidential Information
includes, but is not limited to, the following types of
information (whether or not designated as confidential):
(a) Information regarding the Company's or any of its Affiliate's
customers, and their representatives, potential customers or
leads; the identity of any contracts (contents and parties) to
which the Company or any of its Affiliates is or was a party
or is or was bound; data provided by the Company or any of its
Affiliates; and the type, quantity and specifications of
products and services being sold to, purchased, leased,
licensed or received by the Company or any of its Affiliates;
(b) Information received by the Company or any of its Affiliates
from third parties (such as vendors or dealers) under an
obligation of confidentiality, restricted disclosure or
restricted use, including, but not limited to, information
pertaining to such third parties' customers or clients which
have been provided to the Company or any of its Affiliates;
(c) Internal personnel and financial information of the Company or
any of its Affiliates (including the revenue, costs or profits
associated with any of their respective products or services);
vendor and supplier names, payroll information, purchasing and
internal cost information, internal service and operational
manuals and other information of the Company or any of its
Affiliates; and the manner and methods of conducting the
businesses of the Company or any of its Affiliates;
(d) Information with respect to the products, facilities, methods,
systems, trade secrets and Intellectual Property of the
Company or any of its
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Affiliates including, but not limited to, design, development
or construction information;
(e) Work product and other information related to work or projects
performed or about to be performed for the Company or any of
its Affiliates or for any of their respective customers;
(f) Marketing and developmental plans, price and cost data, price
and fee amounts, pricing and billing policies, quoting
procedures, marketing techniques, methods of obtaining
business, forecasts, forecast assumptions and volumes, future
plans and potential strategies of the Company or any of its
Affiliates;
(g) Any other information relating to the Company or any of its
Affiliates which may have been obtained by Consultant prior to
or after the date of this Agreement; and
(h) Hardware, software, computer programs and other technology
used by the Company or any of its Affiliates.
"Confidential Information" does not include information which
(i) was publicly available at the time of disclosure to
Consultant or (ii) became known to the public after disclosure
to Consultant through no fault of Consultant; provided,
however, that information or documents which are generally
available or accessible to the public shall be deemed
Confidential Information of the Company or any of its
Affiliates if the information was retrieved, gathered,
assembled or maintained by Consultant, the Company or any of
its Affiliates in a manner not available to the public. From
time to time, the Company may, for its own benefit, choose to
place certain Confidential Information or records of the
Company or any of its Affiliates in the public domain. The
fact that such Confidential Information may be made available
to the public in a limited form and under limited
circumstances does not change its characterization as
Confidential Information hereunder, and does not release
Consultant from the duties with respect to such Confidential
Information as set forth in this Agreement
(iv) Non-Disclosure of Terms. Consultant shall not at any time
communicate or divulge any information regarding the
circumstances surrounding this Agreement, or the terms and
conditions or amounts payable under this Agreement, to any
other Person; provided, however, that nothing in this Section
7(c)(iv) shall prevent Consultant from sharing with his legal,
accounting and financial advisors on a confidential basis any
legal or financial information regarding this Agreement. The
obligations of Consultant set forth in this Section 7(c)(iv)
shall survive any termination of the engagement of Consultant
pursuant to Section 6 and shall survive indefinitely
thereafter.
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SECTION 8. NON-DISPARAGEMENT. Consultant agrees that he shall not,
directly or indirectly, make any disparaging statement, or release any
information, or encourage others to make any statement or release any
information that is designed to embarrass or criticize the Company or any of its
Affiliates, any of their respective employees, officers, directors,
representatives or agents, or any of their respective policies or practices, to
any Person, including any of the Company's or its Affiliate's actual or
prospective customers, competitors, employees, former employees, or the press or
other media in the United States of America or in any other country; provided,
however, that it will not be a violation of this Section 8 for Consultant to
make truthful statements when required to do so by a court of law, by any
governmental agency having supervisory authority over the business of the
Company or by any administrative or legislative body (including a committee
thereof) with the jurisdiction to order Consultant to divulge, disclose or make
accessible such information. The obligations of Consultant pursuant to this
Section 8 shall survive any termination of the engagement of Consultant pursuant
to Section 6 and shall survive indefinitely thereafter.
SECTION 9. REASONABLENESS OF TERMS. Consultant agrees that the
restrictions contained in Section 7 and in Section 8 are reasonable and
necessary to protect the goodwill, trade secrets, proprietary interests and
other legitimate business interests of the Company and its Affiliates. Each of
the covenants set forth in Section 7 and Section 8 is severable and separate
and, in the event that any court of competent jurisdiction later determines that
any of the restrictions in Section 7 or Section 8 are not reasonable and/or are
too broad to be enforceable at law or in equity, the Company and Consultant
agree that such court is authorized to restrict the scope of Section 7 or
Section 8, or any portion thereof, to a reasonable restriction, so long as such
restriction is no broader than that contained in the applicable covenant.
SECTION 10. INJUNCTIVE RELIEF. Consultant understands and agrees that
any breach of Sections 7 or 8 of this Agreement will cause material and
irreparable injury to the goodwill and proprietary interests of the Company and
its Affiliates for which there is no adequate remedy at law, and that injury and
damages resulting from any such breach will be immeasurable. Accordingly, in
addition to any other legal or equitable remedies that may be available to the
Company or its Affiliates, Consultant agrees that, upon any breach or threatened
breach of any portion of Sections 7 or 8 of this Agreement, the Company and/or
its Affiliates will be entitled to seek and obtain immediate injunctive relief
without notice or the posting of any bond, in the form of a temporary
restraining order, preliminary injunction or permanent injunction against
Consultant in order to enforce Sections 7 or 8 of this Agreement. The Company
and its Affiliates shall not be required to demonstrate any actual injury or
damage to obtain such injunctive relief from any court. In addition to any
injunctive relief to which it shall be entitled, the Company shall be entitled
to recover from Consultant all costs, expenses and reasonable attorneys' fees
incurred by the Company or any of its Affiliates in seeking enforcement of this
Agreement and/or damages for Consultant's breach of this Agreement. The Company
and its Affiliates shall also be entitled to pursue any other legal or equitable
remedies that may be available to the Company.
SECTION 11. ASSIGNMENT OF INTELLECTUAL PROPERTY. Consultant shall
assign to the Company as soon as practicable following the date hereof all of
Consultant's right, title and interest in and to any and all Intellectual
Property (as defined below), including any copyright therein and any copyright
renewal thereof, for the United States of America and throughout the
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world. Consultant agrees to execute any and all applications for domestic and
foreign patents, copyrights or other proprietary rights and to do such other
acts (including, among others, the execution and delivery of instruments of
further assurance or confirmation) requested by the Company to assign the
Intellectual Property to the Company and to permit the Company to file, obtain
and enforce any patents, copyrights or other proprietary rights in the
Intellectual Property. Consultant agrees that Consultant's obligation to
execute, or cause to be executed, when it is in Consultant's power to do so, any
such instrument or document, will continue indefinitely after termination of
Consultant's engagement pursuant to this Agreement. Consultant agrees to make
and maintain adequate and current written records of all Intellectual Property,
in the form of notes, sketches, drawings or reports relating thereto, which
records shall be and remain the property of and available to the Company at all
times. "Intellectual Property" shall mean all legally-recognized rights, whether
statutory or at common law, to the designs, writings, computer software or firm
source code, object code, data base structures, inventions, formulas,
discoveries, developments, methods, know-how and processes (whether or not
patentable or copyrightable or constituting trade secrets) conceived, made,
developed or discovered, by Consultant (whether alone or with others) at any
time prior to or during Consultant's employment with the Company or any of its
Affiliates or at any time during the Restricted Period and that relate, directly
or indirectly, to the past, present or future business activities, research,
product design or development, personnel and business opportunities, of the
Company or any of its Affiliates, or result from tasks assigned to Consultant by
the Company or any of its Affiliates or done by Consultant for, or on behalf of,
the Company or any of its Affiliates. Intellectual Property includes, but is not
limited to, works of authorship, developments, inventions, innovations, designs,
discoveries, improvements, trade secrets, applications, techniques, know-how and
ideas, whether or not patentable or copyrightable, patents, patent applications,
copyrights and applications or registrations therefor, trademarks and
applications or registrations therefor, conceived, created, made, developed or
first reduced to practice by Consultant (solely or in cooperation with others)
in connection with his or her previous employment with the Company or any of its
Affiliates or in connection with the performance of the Services or which derive
from information or materials Consultant has received from the Company or any of
its Affiliates. Consultant agrees that any Intellectual Property which
constitutes a work of authorship that is copyrightable shall constitute a "work
for hire" as defined in the 17 U.S.C. ss.101 et seq., and shall be the property
of the Company.
SECTION 12. TAXES AND COMPLIANCE WITH LAWS. Consultant shall be solely
responsible for compliance with all state, local and federal laws, orders, codes
and ordinances applicable to the performance of Consultant's obligations under
this Agreement or the compensation paid to Consultant pursuant to this
Agreement. Consultant shall indemnify, defend and hold harmless the Company and
each of its Affiliates, and each of their respective officers, directors,
representatives, agents and employees, from and against any and all liabilities
which the Company or any of its Affiliates may incur as a result of any failure
by Consultant to pay any local, state or federal income, employment,
self-employment or withholding tax, including without limitation any failure to
timely pay any estimated tax.
SECTION 13. NONASSIGNABILITY, BINDING AGREEMENT.
(a) By Consultant. Consultant shall not assign or delegate this
Agreement or any right or interest under this Agreement without the Company's
prior written consent; provided, however,
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that in the event Consultant dies prior to his receipt of all payments due to
him pursuant to this Agreement, Consultant hereby designates (and the Company
hereby consents) that Consultant's estate shall receive the remaining payments
due to him hereunder.
(b) By the Company. The Company may assign, delegate, or transfer this
Agreement and all of the Company's rights and obligations under this Agreement
to any of its Affiliates or to any business entity that by merger, consolidation
or otherwise acquires all or substantially all of the assets of the Company or
to which the Company transfers all or substantially all of its assets. Upon
assignment, delegation, or transfer to any business entity, such entity shall be
deemed to be substituted for the Company for all purposes of this Agreement.
(c) Binding Effect. Subject to Sections 13(a) and (b), this Agreement
shall be binding upon and inure to the benefit of the parties, any successors to
or assigns of the Company, Consultant's heirs and the personal representatives
or executor of his estate.
SECTION 14. SEVERABILITY. If a court of competent jurisdiction makes a
final determination that any term or provision of this Agreement is invalid or
unenforceable, the remaining terms and provisions shall be unimpaired and the
invalid or unenforceable term or provision shall be deemed replaced by a term or
provision that is valid and enforceable and that most closely approximates the
intention of the parties with respect to the invalid or unenforceable term or
provision, as evidenced by the remaining valid and enforceable terms and
conditions of this Agreement.
SECTION 15. AMENDMENT. This Agreement may not be modified, amended or
waived in any manner except by an instrument in writing signed by both parties
to this Agreement.
SECTION 16. WAIVER. The waiver by either party of compliance by the
other party with any provision of this Agreement shall not operate or be
construed as a waiver of any other provision of this Agreement (whether or not
similar), or a continuing waiver or a waiver of any subsequent breach by a party
of a provision of this Agreement. Performance by either of the parties of any
act not required of it under the terms and conditions of this Agreement shall
not constitute a waiver of the limitations on its obligations under this
Agreement, and no performance shall estop that party from asserting those
limitations as to any further or future performance of its obligations.
SECTION 17. GOVERNING LAW; CHOICE OF FORUM; CONSENT TO JURISDICTION.
Notwithstanding the conflict of laws principles of any state or other
jurisdiction to the contrary, the laws of the State of Indiana shall govern the
validity, performance, enforcement, interpretation and any other aspect of this
Agreement. Any proceeding to enforce, interpret, challenge the validity of or
recover for the breach of any provision of this Agreement shall be filed
exclusively in the courts of the State of Indiana or the United States District
Court for the [NORTHERN] District of Indiana, and the parties hereto expressly
waive any and all objections to personal jurisdiction, service of process or
venue in connection therewith.
SECTION 18. NOTICES. All notices required or desired to be given under
this Agreement shall be in writing and shall be deemed to have been given if
delivered (i) in person and receipted for by the party to whom the notice is
directed; (ii) mailed by certified or registered United States
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mail, postage prepaid, not later than the day upon which the notice is required
to be given pursuant to this Agreement; (iii) by facsimile with receipt of
confirmation, at the facsimile numbers listed below; or (iv) delivered by
expedited courier, shipping prepaid or mailed to sender, on the next business
day, after the date on which it is so sent, and addressed as follows:
If to the Company, to: Wabash National Corporation
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx,
Acting Chief Executive Officer
Facsimile: (000)000-0000
With a copy to: Ice Xxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxx 00000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Consultant, to such address for him as is last shown on the
payroll records of the Company.
With a copy to:
--------------------------
--------------------------
--------------------------
Attention:
---------------
Facsimile:
---------------
Either party may, by giving notice to the other party, change the
address to which notice shall then be sent.
SECTION 19. EXPENSES. Each of the parties to this Agreement shall bear
all of his or its own expenses, including attorneys' fees and other
out-of-pocket expenses, in connection with the negotiation, preparation and
enforcement of this Agreement; provided, however, that, in the event a
proceeding is brought by either of the parties to this Agreement to enforce any
of the terms or provisions of this Agreement, the prevailing party shall be
entitled to reimbursement of all expenses in connection therewith, including
reasonable attorneys' fees and other out-of-pocket expenses.
SECTION 20. PRIOR AGREEMENTS. This Agreement is the complete and total
integration of the understanding of the parties with respect to the subject
matter contained herein, and this Agreement supersedes all prior or
contemporaneous negotiations, commitments, agreements, writings, including
handbooks, and discussions with respect to the subject matter of this Agreement,
and all prior negotiations, commitments, agreements, writings, including
handbooks, and discussions will have no force or effect.
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SECTION 21. HEADINGS. The headings of the Sections of this Agreement
are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction of this Agreement.
SECTION 22. COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement. Only one counterpart
signed by the party against which enforceability is sought needs to be produced
to evidence the existence of this Agreement.
SECTION 23. JOINT DRAFTING. This Agreement shall be deemed to have been
drafted jointly by the parties, and, in the event of any ambiguity in this
Agreement, the terms and provisions of this Agreement shall not be construed
against either party as a result of the drafting of this Agreement.
SECTION 24. REMEDIES. All remedies specified in this Agreement shall be
cumulative and not exclusive of any other rights or remedies, and either party
may pursue all rights and remedies available at law or in equity for a breach of
this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
"COMPANY"
WABASH NATIONAL CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
"CONSULTANT"
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Xxxxxx X. Xxxxxxx
00
