CHANGE IN CONTROL AND SEVERANCE AGREEMENT
THIS AGREEMENT dated as of April 1, 2000, is made by and between Terex
Corporation, a Delaware corporation (the "Company"), and ______________ (the
"Executive").
WHEREAS the Company considers it essential to the best interests of its
stockholders to xxxxxx the continued employment of key management personnel; and
WHEREAS the Board of Directors of the Company (the "Board") recognizes
that, as is the case with many publicly-held corporations, the possibility of a
Change in Control (as defined in the Section 18 below) exists and that such
possibility, and the uncertainty which it may raise among management, may result
in the departure or distraction of management personnel to the detriment of the
Company and its stockholders; and
WHEREAS the Board has determined that appropriate steps should be taken
to reinforce and encourage the continued attention and dedication of members of
the Company's management, including the Executive, to their assigned duties
without distraction in the face of potentially disturbing circumstances arising
from the possibility of a Change in Control;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company and the Executive hereby agree as
follows:
1. Defined Terms. The definitions of capitalized terms used in this
Agreement are provided in Section 18 hereof.
2. Term of Agreement.
2.1. (a) This Agreement shall be effective immediately upon
its execution by the parties hereto and shall remain in effect until the
earliest of (i) the termination of the Executive's employment with the Company
prior to a Change in Control (other than a termination of Executive's employment
in anticipation of a Change in Control) for any of the following: by the Company
for Cause, by Executive for any reason other than Good Reason or by reason of
Executive's death or Permanent Disability; (ii) the termination of Executive's
employment with the Company following a Change in Control by reason of death or
Permanent Disability, by the Company for Cause or by the Executive for any
reason other than for a Good Reason; or (iii) three (3) years after the date of
a Change in Control.
(b) Notwithstanding Section 2.1(a) to the contrary,
this Agreement shall terminate two (2) years after its effective date if the
Executive is still in the employ of the Company and a Change in Control has not
occurred and is not reasonably expected to occur within the six (6) month period
thereafter.
3. Change in Control. If the Executive's employment shall be terminated
within twenty-four (24) months following a Change in Control, unless such
termination is (i) by the Company for Cause, (ii) by reason of death or
Permanent Disability, or (iii) by the Executive without Good Reason, the Company
shall pay to the Executive an amount equal to the sum of (a) a lump sum equal to
two (2) times Executive's annual salary in effect at the time written notice of
termination is given to Executive; (b) two (2) times Executive's last paid
annual bonus for a calendar year preceding the calendar year in which the Date
of Termination occurs; and (c) any accrued vacation pay, in each case to the
extent not theretofore paid (the sum of the amounts described in clauses (a),
(b) and (c) shall be hereinafter referred to as the "Severance"). The Company
shall pay to the Executive any Severance in a cash lump sum payment
simultaneously with the termination of Executive's employment following any
Change in Control. In addition, simultaneously with the termination of
Executive's employment following any Change in Control (x) all unvested stock
options and stock grants previously awarded to Executive shall immediately and
unconditionally vest and Executive shall have the right to exercise any stock
options held by him in accordance with their terms but in no event shall
Executive have less than six (6) months following the Date of Termination to
exercise said options; (y) all units granted to Executive pursuant to the
Company's 1999 Long Term Incentive Compensation Plan shall immediately and
unconditionally vest for their maximum cumulative value and be paid to Executive
simultaneously with the termination of employment following any Change in
Control; and (z) the Company shall provide Executive with continuing coverage
under the life, disability, accident and health insurance programs for employees
of the Company generally and under any supplemental programs covering executives
of the Company, as from time to time in effect, for the twenty four (24) month
period from such termination or until Executive becomes eligible for
substantially similar coverage under the employee welfare plans of a new
employer, whichever occurs earlier, provided that Executive's right to elect
continued medical coverage after termination of employment under Part 6 of Title
I of the Employee Retirement Income Security Act of 1974, as amended, shall be
deemed satisfied by the coverage provided in this clause (z). Executive shall
also be entitled to a continuation of all other benefits in effect at the time
of termination (including, without limitation, automobile, country club,
vacation and pension benefits, if applicable) for the twenty four (24) month
period following such termination or until Executive becomes eligible for
substantially similar benefits from a new employer.
4. Excise Tax Gross-Up.
4.1. Notwithstanding anything in this Agreement to the
contrary and except as set forth below, in the event it shall be determined that
any payment or distribution by the Company or its affiliates to or for the
benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
4) (a "Payment") would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended (the "Code") or any interest or
penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments. Notwithstanding the foregoing, if it shall be determined that the
Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed
105% of the greatest amount (the "Reduced Amount") that could be paid to the
Executive such that the receipt of Payments would not give rise to any Excise
Tax, then no Gross-Up Payment shall be made to the Executive and the Payments,
in the aggregate, shall be reduced to the Reduced Amount.
4.2. Subject to the provisions of Section 4.3, all
determinations required to be made under this Section 4, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by PricewaterhouseCoopers LLP or such other nationally recognized certified
public accounting firm as may be designated by the Executive (the "Accounting
Firm") which shall provide detailed supporting calculations both to the Company
and the Executive simultaneously with any event giving rise to a Gross-Up
Payment. All fees and expenses of the Accounting Firm shall be borne solely by
the Company. Any Gross-Up Payment, as determined pursuant to this Section 4,
shall be paid by the Company to the Executive simultaneously with any event
giving rise to a Gross-Up Payment. Any determination by the Accounting Firm
shall be binding upon the Company and the Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 4.3 and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
4.3. The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment or the Underpayment. Such
notification shall be given as soon as practicable but no later than ten (10)
business days after the Executive is informed in writing of such claim and shall
apprise the Company of the nature of such claim and the date on which such claim
is requested to be paid. The Executive shall not pay such claim prior to the
expiration of the thirty (30) day period following the date on which it gives
such notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Company notifies the
Executive in writing prior to the expiration of such period that it desires to
contest such claim, the Executive shall:
(1) provide the Company any information reasonably
requested by the Company relating to such claim,
(2) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(3) cooperate with the Company in good faith in order
effectively to contest such claim, and
(4) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 4.3, the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall pay the amount of such
payment to the Executive, along with an additional Gross-Up Payment, and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such payment or with respect to any imputed income with
respect to such payment; and further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's control of
the contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
4.4. If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 4.3, the Executive receives any
refund with respect to such claim, the Executive shall (subject to the Company's
complying with the requirements of Section 4.3) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto).
5. Termination without Cause or For Good Reason. In the event the
Executive's employment with the Company is terminated by the Company without
Cause or by the Executive for Good Reason, at any time, and, provided no Change
in Control shall have occurred, the Company shall pay the Executive, in cash,
aggregate severance payments equal to the Severance. The Company shall pay to
the Executive any such severance payments due hereunder in twenty four (24)
equal monthly payments on the first day of each month following such
termination. In addition, Executive shall have the right to exercise any stock
options, long-term incentive awards or other similar awards held by him in
accordance with the relevant plan documents or grant letter; provided, however,
in no event shall Executive have less than six (6) months following the Date of
Termination to exercise such options or awards; and (b) the Company shall
provide Executive with continuing coverage under the life, disability, accident
and health insurance programs for employees of the Company generally and under
any supplemental programs covering executives of the Company (including, without
limitation, participation in the Company's 401(K) retirement plan), as from time
to time in effect, for the twenty four (24) month period from such termination
or until Executive becomes eligible for substantially similar coverage under the
employee plans of a new employer, whichever occurs earlier, provided that
Executive's right to elect continued medical coverage after termination of
employment under Part 6 of Title I of the Employee Retirement Income Security
Act of 1974, as amended, shall be deemed satisfied by the coverage provided in
this clause (b). Executive shall also be entitled to a continuation of all other
benefits in effect at the time of termination (including, without limitation,
automobile, country club, vacation and pension benefits, if applicable) for the
twenty four (24) month period following such termination or until Executive
becomes eligible for substantially similar benefits from a new employer.
Notwithstanding anything to the contrary, the Company agrees that for purposes
of the Company's 1994, 1996 and 2000 Incentive Plans, Executive's termination
date shall be twenty-four (24) months following the Date of Termination.
6. Payment for Past Service. Notwithstanding any other provisions of
this Agreement, if the Executive's employment is terminated at any time, the
Company shall pay the Executive, in cash, an aggregate amount not less than the
sum of (a) Executive's annual bonus for the most recently completed fiscal year
to the extent such bonus has not been paid to Executive, which bonus shall not
be less than the annual bonus paid to Executive during the preceding year, if
any; (b) the product of (i) a fraction, the numerator of which is the number of
days in the current fiscal year through the Date of Termination, and the
denominator of which is 365 and (ii) the annual bonus for the calendar year
preceding the Date of Termination that has most recently been paid to the
Executive; (c) any accrued vacation pay, to the extent not theretofore paid to
Executive; and (d) any other amounts earned by Executive prior to the Date of
Termination but not previously paid.
7. Confidentiality.
7.1. In consideration of the agreements and payments of the
Company herein, the Executive shall keep confidential and not disclose to any
person any information relating to the Company's business and/or finances, which
information was obtained during and/or as incident to or in connection with the
Executive's employment with the company and which otherwise is not public
information. The Executive agrees he will conduct himself in a professional
manner and not make any disparaging, negative or other statements regarding the
Company, its affiliates or any of the officers, directors or employees of the
Company or its affiliates which could in any way have an adverse affect on the
business or affairs of the Company or its affiliates or otherwise be injurious
to or not be in the best interests of the Company, its affiliates or any such
other persons.
7.2. The Executive agrees that this non-competition and
non-solicitation covenant is reasonable under the circumstances, and the
Executive further agrees that his services for and on behalf of the Company are
unique and irreplaceable. The Executive further agrees that any breach of the
covenants contained in Section 7.1 above would irreparably injure the Company
and/or its affiliates or subsidiaries. Accordingly, the Executive agrees that
the Company may, in addition to pursuing any other remedies it may have at law
or in equity, obtain an injunction against the Executive from any court having
jurisdiction over the matter restraining any further violation of the covenants
contained in Section 7.1 above.
8. Outplacement Services. In the event of the termination of the
Executive's employment after a Change in Control or without Good Reason as
provided for in Sections 3 or 5 hereof, the Company agrees, at its sole cost and
expense, to provide the Executive with outplacement services for a period of at
least twelve (12) months following the Date of Termination. The Company and the
Executive shall use their good faith efforts to locate a provider, and determine
the scope of, outplacement services which is reasonably acceptable to both
parties taking into account the status of the Executive as a senior executive
officer.
9. Legal Expenses. The Company agrees to pay the reasonable out-of
pocket legal expenses actually incurred by the Executive in connection with the
negotiation and execution of this Agreement. The Company agrees to pay all
reasonable out-of-pocket costs and expenses, including all reasonable attorneys'
fees and disbursements, actually incurred by the Executive in collecting or
enforcing payments to which he is ultimately determined to be entitled (whether
by agreement among the parties, court order or otherwise) pursuant to this
Agreement in accordance with its terms.
10. Notice of Termination. Any purported termination of the Executive's
employment (other than by reason of death) shall be communicated by written
notice from one party hereto to the other party hereto in accordance with
Section 13 hereof. For purposes of this Agreement, a notice of termination shall
set forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment.
11. No Other Compensation; Employee at Will. Except as provided in
Sections 3, 4, 5, 6, 8 and 9 hereof, no amount or benefit shall be payable to
the Executive under this Agreement or otherwise except as required by law. This
Agreement shall not be construed as creating an express or implied contract of
employment and, except as otherwise agreed in writing between the Executive and
the Company, the Executive is and shall remain "an employee at will" and shall
not have any right to be retained in the employ of the Company.
12. Successors; Binding Agreement.
12.1 In addition to any obligations imposed by law upon any
successor to the Company, the Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company in
the same amount and on the same terms as the Executive would be entitled to
hereunder if the Executive were to terminate the Executive's employment for Good
Reason after a Change in Control, except that, for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination.
12.2 This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive shall die while any amount would still be payable to the Executive
hereunder (other than amounts which, by their terms, terminate upon the death of
the Executive) if the Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the executors, personal representatives or administrators of the
Executive's estate.
13. Notices. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below, or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon actual receipt:
To the Company: Terex Corporation
000 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
To the Executive:
14. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer as may be specifically
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Connecticut. All references to sections of the
Exchange Act or the Code shall be deemed also to refer to any successor
provisions to such sections. Any payments provided for hereunder shall be paid
net of any applicable withholding required under federal, state or local law and
any additional withholding to which the Executive has agreed. In that either
party hereto shall institute proceedings for the enforcement of this Agreement,
the succeeding party shall be entitled to recover the reasonable fees and
expenses incurred such succeeding party in connection therewith, including
reasonable attorneys fees.
15. Partial Validity. The invalidity or unenforceability or any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
16. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. Mitigation. The Company agrees that if Executive's employment with
the Company terminates Executive is not required to seek other employment or to
attempt in any way to reduce any amounts payable to him due under this
Agreement. Further, the amount of any payment shall not be reduced by any
compensation earned by Executive as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by Executive to the Company, or otherwise.
18. Definitions. For purposes of this Agreement, the following terms
shall have the meanings indicated below:
(A) "Beneficial Owner" shall have the meaning defined in Rule
13d-3 under the Exchange Act.
(B) "Cause" for termination by the Company of the Executive's
employment shall mean (i) the willful, substantial and continued
failure by the Executive to substantially perform the Executive's
duties with the Company (other than any such failure resulting from
the Executive's incapacity due to physical or mental illness) in a
manner reasonably satisfactory to the Chief Executive Officer of the
Company after written notice detailing the reasons for such failure,
(ii) the willful engaging by the Executive in conduct which is
demonstrably and materially injurious to the Company or its
subsidiaries, monetarily or otherwise, or (iii) the entry by a court
of competent jurisdiction of an order, or the entering into by the
Executive of a consent decree, barring the Executive from serving as
an officer or director of a public company. For purposes of clauses
(i) and (ii) of this definition, no act, or failure to act, on the
Executive's part shall be deemed "willful" unless done, or omitted to
be done, by the Executive not in good faith and without reasonable
belief that the Executive's act, or failure to act, was in the best
interest of the Company.
(C) A "Change in Control" shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall have
been satisfied:
(i) any person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such person
any securities acquired directly from the Company)
representing 35% or more of the combined voting power of the
Company's then outstanding securities, excluding any person
who becomes such a Beneficial Owner in connection with
transactions described in clauses (x), (y) or (z) of paragraph
(iii) below; or
(ii) there is a change in the composition of the
Board of Directors of the Company occurring within a rolling
two-year period, as a result of which fewer than a majority of
the directors are Incumbent Directors ("Incumbent Directors"
shall mean directors who either (x) are members of the Board
as of the date of this Agreement or (y) are elected, or
nominated for election, to the Board with the affirmative
votes of at least a majority of the Incumbent Directors at the
time of such election or nomination, but shall not include an
individual not otherwise an Incumbent Director whose election
or nomination is in connection with an actual or threatened
proxy contest, including but not limited to a consent
solicitation, relating to the election of directors to the
Board); or
(iii) there is consummated, in any transaction or
series of transactions, of a complete liquidation or
dissolution of the Company or a merger, consolidation or sale
of all or substantially all of the Company's assets
(collectively, a "Business Combination") other than a Business
Combination after which (x) the stockholders of the Company
own more than 50 percent of the common stock or combined
voting power of the voting securities of the company resulting
from the Business Combination, (y) at least a majority of the
board of directors of the resulting corporation were Incumbent
Directors and (z) no individual, entity or group (excluding
any corporation resulting from the Business Combination or any
employee benefit plan of such corporation or of the Company)
becomes the Beneficial Owner of 35 percent or more of the
combined voting power of the securities of the resulting
corporation, who did not own such securities immediately
before the Business Combination; or
(iv) the stockholders of the Company approve a plan
of complete liquidation or dissolution of the Company or there
is consummated a sale or disposition by the Company of all or
substantially all the Company's assets.
(D) "Date of Termination," with respect to any purported
termination of the Executive's employment shall mean the later of (i)
date specified in the notice or (ii) thirty (30) days from the date of
the notice unless such notice is for a termination of Executive for
Cause.
(E) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
(F) "Good Reason" for termination by the Executive of the
Executive's employment shall mean the occurrence (without the
Executive's express written consent) of any one of the following acts
by the Company, or failures by the Company to act, unless, in the case
of any act or failure to act as described below, such act or failure
to act is corrected prior to the Date of Termination specified in the
notice of termination given in respect thereof:
(i) the assignment to the Executive of any duties
inconsistent with the Executive's status as a senior executive
officer of the Company or a substantial adverse alteration in
the nature of Executive's authority, duties or
responsibilities, or any other action by the Company which
results in a diminution in such status, authority, duties or
responsibilities (it being understood that a mere change in
authority, duties or responsibilities, or any other action by
the Company will not constitute Good Reason in and of itself
unless it results in a substantial adverse alteration or
diminution of Executive's authority, duties or
responsibilities), excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith
and which is remedied by the Company promptly after receipt of
notice thereof given by the Executive;
(ii) a reduction by the Company in Executive's base
salary and/or annual bonus as in effect on the date hereof or
as the same may be increased from time to time, except for
across-the-board reductions similarly affecting all senior
executives of the Company, provided, however, that such
across-the-board reductions are not made as a result of, or in
contemplation of, a Change in Control;
(iii) the failure by the Company to pay to Executive
any portion of Executive's current compensation except
pursuant to an across-the-board compensation deferral
similarly affecting all senior executives of the Company,
provided, however, that such across-the-board compensation
deferrals are not made as a result of, or in contemplation of,
a Change in Control;
(iv) the failure by the Company to continue in effect
any compensation plan or other benefit in which Executive
participates which is material to Executive's total
compensation, except pursuant to an across-the-board
compensation or benefit deferral or reduction similarly
affecting all senior executives of the Company, provided,
however, that such across-the-board compensation or benefit
deferrals are not made as a result of, or in contemplation of,
a Change in Control;
(v) the failure by the Company to continue to provide
Executive with benefits substantially similar to those enjoyed
by the Executive under any of the Company's pension, life
insurance, medical, health and accident, disability plans or
other benefits (including, without limitation, automobile,
country club, vacation, and pension benefits) in which
Executive was participating at the time, the taking of any
action by the Company which would directly or indirectly
materially reduce any of such benefits or deprive the
Executive of any material fringe benefit enjoyed by Executive
at the time, (including, without limitation, automobile,
country club, vacation and pension benefits), or the failure
by the Company to provide Executive with the number of paid
vacation days to which Executive he is then entitled; or
(vi) the relocation of the Company's principal
executive offices to a location more than 50 miles from the
location of such offices on the date of this Agreement or a
requirement that the Executive be based anywhere other than at
the Company's principal executive offices except for necessary
travel on the Company's business to an extent substantially
consistent with the Executive's business travel obligations on
the date of this Agreement.
(G) "Permanent Disability" shall be deemed the reason for the
termination by the Company of the Executive's employment if, as a
result of the Executive's incapacity due to physical or mental illness,
the Executive shall have been absent from the full-time performance of
the Executive's duties with the Company for a period of six (6)
consecutive months or nine (9) months out of any twelve (12) month
period, the Company shall have given the Executive a notice of
termination for Disability, and, within thirty (30) days after such
notice of termination is given, the Executive shall not have returned
to the full-time performance of the Executive's duties.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
TEREX CORPORATION
By:__________________________
Name: Xxxxxx X. XxXxx
Title: Chairman, Chief Executive Officer,
President and Chief Operating Officer
__________________________
Executive
