EMPLOYMENT AGREEMENT
THIS AGREEMENT by and between Xxxxxx Manufacturing Inc., a Wisconsin
corporation (the "Company"), and Xxxx X. Xxxxxxxxxxx, (the "Executive"), dated
as of the 16th day of September 1996.
WITNESSETH THAT
WHEREAS, the parties wish to provide for the employment by the Company
of the Executive, and the Executive wishes to serve the Company and its
affiliate, Oshkosh Truck Corporation, in the capacities and on the terms and
conditions set forth in this Agreement.
NOW THEREFORE, it is hereby agreed as follows:
1. Employment Period. The Company shall employ the Executive, and the
Executive shall serve the Company, on the terms and conditions set forth in this
Agreement, for an initial period (the "Initial Period") commencing at the date
of this Agreement and ending on November 30, 1996. This Agreement thereafter
will renew automatically for successive terms of one (1) year each, unless
either party has given at least forty-five (45) days' advance written notice of
it or his intent to allow this Agreement to expire as of the end of such Initial
Period or renewal term. The term during which the Executive is employed by the
Company hereunder (including without limitation the Initial Period) is hereafter
referred to as the "Employment Period."
In the event that for any reason, the Executive's employment continues
with the Company following the expiration of the Employment Period, as set forth
above, then for so long as the Executive is so employed by the Company, the
provisions of Sections 8 and 9 shall survive the expiration of the Employment
Period of this Agreement.
2. Position and Duties.
-------------------
(a) The Executive shall serve as Vice President,
Manufacturing; with such duties and responsibilities as are customarily
assigned to such position, and such other duties and responsibilities
not inconsistent therewith as may from time to time be assigned to him
by the President (the "President") of the Company.
(b) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the
Executive shall devote his full attention and time during normal
business hours to the business and affairs of the Company and its
affiliate and, to the extent necessary to discharge the
responsibilities assigned to the Executive under this Agreement, use
the Executive's reasonable best efforts to carry out such
responsibilities faithfully and efficiently. It shall not be considered
a violation of the foregoing for the Executive to serve on industry,
civic, or charitable boards or committees, so long as such activities
do not significantly interfere with the performance of the Executive's
responsibilities as an employee of the Company and its affiliate in
accordance with this Agreement.
- Page 1 -
3. Compensation.
------------
(a) Base Salary. The Executive's compensation during the
Employment Period shall be determined by the President, subject to the
next sentence and paragraph (b) of Section 3. During the Initial
Period, the Executive shall receive an annual base salary ("Annual Base
Salary") of not less than his aggregate annual base salary from Company
as in effect immediately before the date of this Agreement. The Annual
Base Salary shall be payable in accordance with the Company's regular
payroll practice for its executives, as in effect from time to time.
During the Employment Period, the Annual Base Salary shall be reviewed
for possible adjustment at least annually. Any adjustment in the Annual
Base Salary shall not limit or reduce any other obligation of the
Company under this Agreement. The term "Annual Base Salary" shall
thereafter refer to the Annual Base Salary as so adjusted.
(b) Incentive Compensation. During the Employment Period, the
Executive shall be provided the opportunity to participate in
short-term incentive compensation plans and long-term incentive
compensation plans which shall be developed and offered by the Company
to executives employed in the business.
(c) Vacations and Holidays. The Executive shall be entitled to
receive twenty (20) days of paid vacation per year together with the
paid holidays available to all other management personnel.
(d) Fringe Benefits. The Executive shall be entitled to
participate in fringe benefit plans and programs in effect from time to
time for employees of the company, and on a basis appropriate to the
position, including medical and dental insurance, expense
reimbursements, pension and retirement benefits and other similar
benefits.
(e) 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.
(f) 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.
4. Termination of Employment.
-------------------------
(a) Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the
Employment Period. The Company shall be entitled to terminate the
Executive's employment because of the Executive's Disability during the
Employment Period. "Disability" means that (i) the Executive has been
unable, for a period of one hundred eighty (180) consecutive days, to
perform the
- Page 2 -
Executive's duties under this Agreement, as a result of physical or
mental illness or injury, and (ii) a physician selected by the Company
or its insurers, and acceptable to the Executive or the Executive's
legal representative, has determined that the Executive's incapacity
will continue. A termination of the Executive's employment by the
Company for Disability shall be communicated to the Executive by
written notice, and shall be effective on the thirtieth day after
receipt of such notice by the Executive (the "Disability Effective
Date"), unless the Executive returns to full-time performance of the
Executive's duties before the Disability Effective Date.
(b) By the Company.
--------------
(i) The Company may terminate the Executive's
employment during the Employment Period for Cause or without
Cause. "Cause" means:
A. The willful and continued failure of the
Executive to substantially perform the Executive's
duties under this Agreement (other than as a result
of physical or mental illness or injury), after the
President delivers to the Executive a written demand
for substantial performance that specifically
identifies the manner in which the President believes
that the Executive has not substantially performed
the Executive's duties; or
B. Illegal conduct or gross misconduct by
the Executive, in either case that is willful and
results in material and demonstrable damage to the
business or reputation of the Company.
C. Violation of any of the covenants set
forth under Sections 8 and 9 of this Agreement.
No act or failure to act on the part of the Executive
shall be considered "willful" unless it is done, or omitted to
be done, by the Executive in bad faith or without reasonable
belief that the Executive's action or omission was in the best
interests of the Company.
(ii) A termination of the Executive's employment for
Cause shall be effected by the President following written
notice to the Executive and an opportunity for the Executive
to be heard by the Chairman and CEO of Oshkosh Truck
Corporation.
(iii) A termination of the Executive's employment
without Cause shall be effected by the President following
written notice to the Executive and an opportunity for the
Executive to be heard by the Chairman and CEO of Oshkosh Truck
Corporation.
- Page 3 -
(c) Good Reason.
-----------
(i) The Executive may terminate employment for Good
Reason or without Good Reason. "Good Reason" means:
A. The assignment to the Executive of any
duties inconsistent in any respect with paragraph (a)
of Section 2 of this Agreement, or any other action
by the Company that results in a diminution in the
Executive's position, including base salary,
authority, duties or responsibilities, other than an
isolated, insubstantial and inadvertent action that
is not taken in bad faith and is remedied by the
Company promptly after receipt of notice thereof from
the Executive.
B. Any failure by the Company to comply with
any provision of Section 3 of this Agreement, other
than an isolated, insubstantial and inadvertent
failure that is not taken in bad faith and is
remedied by the Company promptly after receipt of
notice thereof from the Executive;
C. Any purported termination of the
Executive's employment by the Company for a reason or
in a manner not expressly permitted by this
Agreement; or
D. Any other substantial breach of this
Agreement by the Company that either is not taken in
good faith or is not remedied by the Company promptly
after receipt of notice thereof from the Executive.
(ii) A termination of employment by the Executive for
Good Reason shall be effected by giving the Company written
notice ("Notice of Termination for Good Reason") of the
termination within three (3) months of the event constituting
Good Reason, setting forth in reasonable detail the specific
conduct of the Company that constitutes Good Reason and the
specific provision(s) of this Agreement on which the Executive
relies. A termination of employment by the Executive for Good
Reason shall be effective on the fifth business day following
the date when the Notice of Termination for Good Reason is
given, unless the notice sets forth a later date (which date
shall in no event be later than thirty (30) days after the
notice is given).
(iii) A termination of the Executive's employment by
the Executive without Good Reason shall be effected by giving
the Company written notice of the termination.
(d) Date of Termination. The "Date of Termination" means the
date of the Executive's death, the Disability Effective Date, the date
on which the termination of the Executive's employment by the Company
for Cause or without Cause or by the Executive for Good Reason is
effective, or the date on which the Executive gives the Company notice
of a termination of employment without Good Reason, as the case may be.
- Page 4 -
5. Obligations of the Company upon Termination.
-------------------------------------------
(a) By the Company other than for Cause, Death or Disability;
by the Executive for Good Reason. If, during the Employment Period, the
Company terminates the Executive's employment, other than for Cause,
Death, or Disability, or the Executive terminates employment for Good
Reason the Company shall continue to provide the Executive with the
compensation and fringe benefits as set forth in paragraphs (a) and (d)
of Section 3 as if he had remained employed by the Company pursuant to
this Agreement through the end of the Employment Period, but, in no
event for fewer than twelve (12) months. The payments provided pursuant
to this paragraph (a) of Section 5 are intended as liquidated damages
for a termination of the Executive's employment by the Company other
than for Cause or Disability or for the actions of the Company leading
to a termination of the Executive's employment by the Executive for
Good Reason, and shall be the sole and exclusive remedy therefor.
(b) Death and Disability. If the Executive's employment is
terminated by reason of the Executive's death or Disability during the
Employment Period, the Company shall pay to the Executive or, in the
case of the Executive's death, to the Executive's designated
beneficiaries (or, if there is no such beneficiary, to the Executive's
estate or legal representative), in a lump sum in cash within thirty
(30) days after the Date of Termination, the sum of the following
amounts (the "Accrued Obligations"): (1) any portion of the Executive's
Annual Base Salary through the Date of Termination that has not yet
been paid; (2) an amount representing Incentive Compensation due for
the period through the Date of Termination; and (3) any accrued but
unpaid vacation pay.
(c) By the Company for Cause; By the Executive Other than for
Good Reason. If the Executive's employment is terminated by the Company
for Cause during the Employment Period the Company shall pay the
Executive the Annual Base Salary through the Date of Termination and
the Company shall have no further obligations under this Agreement,
except as specified in Section 6 below. If the Executive voluntarily
terminates employment during the Employment Period, other than for Good
Reason, the Company shall pay to the Executive: (1) any portion of the
Executive's Annual Base Salary through the Date of Termination that has
not yet been paid; and (2) any accrued vacation pay, both payable in a
lump sum in cash within thirty (30) days of the Date of Termination,
and the Company shall have no further obligations under this Agreement,
except as specified in Section 6 below.
(d) Xxxxxx Manufacturing Inc., Severance Plan. Not
withstanding the foregoing subparagraphs (a), (b), and (c), the
Executive also shall be entitled to receive any applicable benefits
under the Xxxxxx Manufacturing Inc., severance plan adopted by the
Board of Directors of the company on August 26, 1996.
6. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing of future participation in any plan,
program, policy or practice provided by the Company or any of its affiliates for
which the Executive may qualify, nor shall anything
- Page 5 -
in this Agreement limit or otherwise affect such rights as the Executive may
have under any contract or agreement with the Company or any of its affiliates
relating to subject matter other than that specifically addressed herein. Vested
benefits and other amounts that the Executive is otherwise entitled to receive
under the Company's Compensation program or any other plan, policy, practice or
program of or any contract or agreement with, the Company or any of its
affiliates on or after the Date of Termination shall be payable in accordance
with the terms of each such plan, policy, practice, program, contract or
agreement, as the case may be, except as explicitly modified by this Agreement.
7. Full Settlement. The Company's obligation to make the payments
provided for in, and otherwise to perform its obligations under, this Agreement
shall not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action that the Company may have against the Executive or
others. In no event shall the Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement.
8. 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 fire products engineering information,
marketing, sales, distribution, pricing and bid process information,
product specifications, manufacturing procedures, methods, business
plans, strategic 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 two (2) 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
- Page 6 -
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.
9. Restrictive Covenants.
---------------------
(a) The Executive shall hold in a fiduciary capacity for the
benefit of the Company all secret or Confidential Information,
knowledge or data relating to the Company or any of its affiliated
companies and their respective businesses that the Executive obtains
during the Executive's employment by the Company or any of its
affiliated companies and that is not public knowledge (other than as a
result of the Executive's violation of this Section 9). The Executive
shall not communicate, divulge or disseminate Confidential Information
at any time during the Executive's employment with the Company and for
the two (2) year period thereafter, except with the prior written
consent of the Company or as otherwise required by law or legal
process. In no event shall any asserted violation of the provisions of
this Section 9 constitute a basis for deferring or withholding any
amounts otherwise payable to the Executive under the Agreement.
(b) The Executive shall not, during the Employment Period and
for one (1) year following the end of the Employment Period, without
the prior written consent of the President of the Company, be employed
directly or indirectly by, be a sole proprietor or partner of, or act
as a consultant to, any business in any capacity where confidential
information concerning the Company and/or its subsidiaries or
affiliates which was acquired by the Executive during his employment
with the same would reasonably be considered to be useful; neither will
the Executive, directly or indirectly, make sales solicitations to any
person, corporation, partnership or other business entity which is, at
the present time and at the time of such sales solicitation, a customer
or prospective customer of the Company and/or its subsidiaries or
affiliates, if the effect of such action would be likely to cause such
customer to substantially reduce existing or future business
relationships with or purchases from the Company and/or its
subsidiaries or affiliates.
(c) The Executive agrees that the Company will suffer
irreparable damage in the event the provisions of paragraphs (b) and
(c) of Section 8 and paragraphs (a) and (b) of Section 9 are breached
and his acceptance of the provisions of Sections 8 and 9 is a material
factor in his decision to enter into this Agreement. The Executive
further agrees that the Company shall be entitled as a matter of right
to injunctive relief to prevent a breach by the Executive of the
provisions of Sections 8 and 9. Resort to such equitable relief,
however, shall not constitute a waiver of any other rights or remedies
the Company may have. Nothing in this Agreement modifies or reduces the
Executive's obligation to comply with applicable laws relating to trade
secrets, confidential information, or unfair competition.
- Page 7 -
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. 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 and assigns.
11. Miscellaneous.
-------------
(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Wisconsin, without reference
to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect.
This Agreement may not be amended or modified except by a written
agreement executed by the parties hereto or their respective successors
and legal representatives.
(b) All notices and other communications under this Agreement
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:
(Executive Name and Address)
Or, in person, by hand to the Executive at
the Executive's place of employment.
(ii) If to the Company:
Xxxxxx Manufacturing Inc.
c/o 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 furnishes to the other in
writing in accordance with this paragraph (b) of Section 11. Notices
and communications shall be effective when actually received by the
addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement. If any provision of this Agreement
shall be held invalid or unenforceable in part, the remaining portion
of such provision, together with all other provisions of this
Agreement, shall remain valid and enforceable and continue in full
force and effect to the fullest extent consistent with law.
- Page 8 -
(d) Notwithstanding any other provisions of this Agreement,
the Company may withhold from amounts payable under this Agreement all
federal, state, local and foreign taxes that are required to be
withheld by applicable laws or regulations.
(e) The Executive's or the Company's failure to insist upon
strict compliance with any provisions of, or to assert any right under,
this Agreement (including, without limitation, the right of Executive
to terminate employment for Good Reason pursuant to paragraph (c) of
Section 4 of this Agreement) shall not be deemed to be a waiver of such
provision or right or of any other provision of or right under this
Agreement.
(f) The rights and benefits of the Executive under this
Agreement may not be anticipated, assigned, alienated or subject to
attachment, garnishment, levy, execution or other legal or equitable
process except as required by law. Any attempt by the Executive to
anticipate, alienate, assign, sell transfer, pledge, encumber or charge
the same shall be void. Payments hereunder shall not be considered
assets of the Executive in the event of insolvency or bankruptcy.
(g) This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and said counterparts shall
constitute but one and the same instrument.
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/ Xxxxxx X. Xxxx
-------------------------------------
Xxxxxx X. Xxxx
Title: President and COO
-----------------------------------
Date: 9-9-96
-----------------------------------
Attest: Xxxxxxxx X. Xxxxxxxx
----------------------------------
AGREED TO:
By: /s/ Xxxx X. Xxxxxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxxxxx
Title: Vice President - Manufacturing
-----------------------------------
Date: 9-16-96
-----------------------------------
Attest: Xxxxxxx X. Xxxxxxxxx
---------------------------------
- Page 9 -
