1
EXHIBIT 23
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of the 10th day of May, 1999
by and between GRADALL INDUSTRIES, INC., a Delaware corporation (the "Company")
and XXXXX X. XXXXXX, (the "Executive")
WITNESSETH THAT:
WHEREAS, the Executive has been employed by the Company pursuant to the
terms of an Employment Agreement between The Gradall Company and the Executive
dated November 1, 1995 (the "Prior Employment Agreement"), and
WHEREAS, the Company and the Executive desire to amend and restate the
Prior Employment Agreement to provide for the continued employment of the
Executive after the sale of the Company to JLG Industries, Inc.
("JLG") upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties hereto agree as follows:
1. DUTIES. The Company hereby agrees to continue to employ the
Executive in an executive capacity and the Executive hereby agrees to continue
to serve the Company in that capacity in accordance with the terms and
conditions set forth in this Agreement. The Executive shall devote his best
efforts and skills, energy and attention to the business of the Company.
2. TERM. Subject to prior termination as set forth in Section 7 hereof,
the term of this Agreement shall be for a one year period, beginning on the date
hereof, which term shall be automatically renewed for successive one year
periods, until terminated pursuant to Section 7 hereof.
3. COMPENSATION. The Company shall pay to the Executive as compensation
for his services hereunder a base salary of $6,930.00 per month, or at the rate
currently existing, whichever is higher. The salary provided for herein shall be
subject to adjustment based on the annual reviews conducted by the Company.
Effective on the date this Agreement becomes effective, base salary shall
include an additional $12,360 per annum in lieu of the automobile allowance
previously provided. In addition to the Executive's base salary, the Executive
shall continue to participate in any incentive compensation plans established by
the Company from time to time, provided that the Executive is eligible to
participate in such plans pursuant to the terms
2
thereof; provided that the amount payable to the Executive under existing
Company management incentive compensation plans for 1999 shall be payable on or
before September 30, 1999 in an amount equal to 7/12 of the bonus that would be
payable for calendar year 1999 assuming that the Company would have achieved 24%
growth in earnings per share compared to 1998; and provided further that,
effective as of August 1, 1999, the Executive shall participate in the
management incentive compensation plans of JLG as approved by the JLG
Compensation Committee from time to time, and shall no longer participate in
existing Company management incentive compensation plans; and provided further
that the Executive shall discontinue participation in the Company's stock based
compensation plans and shall participate as approved by the JLG Compensation
Committee from time to time in JLG's stock based compensation plans. The Company
shall contribute for the account of the Executive $5,000 per year to the
Supplemental Executive Retirement Plan ("SERP") maintained by the Company.
4. EXPENSES. Subject to the Company's policies and procedures in effect
from time to time, the Executive is authorized to incur reasonable expenses in
connection with the business of the Company and the performance of his duties
hereunder, including expenses for entertainment, travel and similar items.
Subject to the Company's policies and procedures, in effect from time to time,
the Company will reimburse the Executive for all such expenses upon the
presentation by the Executive of an itemized account of such expenditures and
any other documentation or substantiation of expenses which may be required for
compliance with applicable state and federal tax laws.
5. VACATIONS. The Executive shall be entitled to four weeks of vacation
each year, during which time his compensation shall be paid in full.
6. TERMINATION. This Agreement may be terminated in accordance with the
following terms and conditions:
(a) The Company may terminate this Agreement at any time, without
cause, upon written notice to the Executive, provided that the
Company shall continue to pay to the Executive all amounts he
would otherwise receive under this Agreement for a period of
14 months from the effective date of such termination
including, but not limited to, salary, incentive compensation,
contributions to the SERP and continuation of coverage under
life and medical insurance programs in which the Executive
participated; provided, however, that to the extent that any
benefit provided to the Executive prior to the date this
Agreement becomes effective is, or is
2
3
equivalent to, a Broad-Based Benefit, the benefit provided to
the Executive shall reflect any generally applicable change to
or reduction of such Broad-Based Benefit. The term,
Broad-Based Benefit, shall mean any applicable benefit under
any plan, program or arrangement that is provided or made
available to employees generally and shall not include any
benefit considered to be an "executive" benefit that is
provided or made available only to upper-level management. The
amount of incentive compensation payable to the Executive
under this Section 6(a) shall be based on an annual amount
that is no less than 40% of the Executive's base salary for
the applicable year. Notwithstanding the above, the amount
required to be paid by the Company pursuant to this Section
6(a) shall be reduced by any amounts paid to or for the
Executive by any other company for which the Executive
provides services during such period. The Executive's
entitlements to welfare benefits (including but not limited to
medical, disability, life insurance, travel and AD&D insurance
benefits) under this Section 6(a) shall terminate immediately
upon the Executive's becoming entitled to coverage of a
similar nature under benefit plans of a subsequent employer,
subject to the Executive's rights to continuation coverage
under the Company's plans at his expense under COBRA.
(b) The Company may terminate this Agreement upon written notice
to the Executive and shall have no obligation to pay any
amounts provided for under this Agreement if the Executive
commits any act of fraud or dishonesty, is convicted of a
felony or commits an act of gross negligence or willful
misconduct which are injurious to the Company of its
stockholders.
7. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Ohio.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement between the Company and the Executive with regard to
the subject matter hereof and supersedes all other agreements, conditions or
representations, oral or written, express or implied, including, without
limitation, all prior employment agreements by and between the Company and the
Executive.
9. EFFECTIVENESS. This Agreement shall become effective only upon
consummation of the merger contemplated by the Agreement and Plan of Merger
among GRADALL INDUSTRIES, INC., JLG ACQUISITION CORP. and JLG INDUSTRIES, INC.,
dated May 10, 1999.
3
4
Unless and until such merger is consummated, the Employment Agreement between
the Company and the Executive dated as of November 1, 1995 shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above set forth.
GRADALL INDUSTRIES, INC.
By:
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxx
4
