EMPLOYMENT AGREEMENT
THIS AGREEMENT by and between McNeilus Companies, Inc., a Minnesota
corporation (the "Company"), and Xxx X. Xxxxxxxx, (the "Executive"), dated as of
the 24th day of April 1998.
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, its affiliates,
McNeilus Truck and Manufacturing, Inc., Iowa Contract Fabricators, Inc.,
XxXxxxxx Fabricators, Inc., and Kensett Fabricators, Inc., and its parent
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 September 31, 1998. 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 President of McNeilus
Companies, Inc., and of its said affiliates 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 and CEO (the "CEO") of Oshkosh Truck
Corporation.
(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 said affiliates 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.
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3. Compensation.
(a) Base Salary. The Executive's compensation during the
Employment Period shall be determined by the CEO, 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 eight (180) consecutive days, to
perform the 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
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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
CEO delivers to the Executive a written demand for
substantial performance that specifically
identifies the manner in which the CEO 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 CEO following written notice
to the Executive and an opportunity for the Executive
to be heard by the Chairman of Oshkosh Truck
Corporation.
(iii)A termination of the Executive's employment without
Cause shall be effected by the CEO following written
notice to the Executive and an opportunity for the
Executive to be heard by the Chairman of Oshkosh Truck
Corporation.
(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
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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.
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
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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.
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 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 refuse, mixer, construction, fire, or defense
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. For the purposes of this definition "products" is
intended to include, but not limited by way of enumeration,
completed motor vehicles, incomplete vehicle chassis, bodies
for installation on incomplete vehicle chassis, and parts
and accessories for motor vehicles and vehicle components.
Confidential
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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 to any other person and will not
use any Confidential Information, except for use or
disclosure of Confidential Information for the exclusive
benefit of the Company as it may direct or as necessary to
fulfill the Executive's continuing duties as an employee of
the Company.
(c) Return of Property. All memoranda, notes, records, papers,
tapes, disks, programs or other documents or forms of
documents and all copies thereof relating to the operations
or business of the Company or any of its subsidiaries that
contain Confidential Information, some of which may be
prepared by the Executive, and all objects associated
therewith in any way obtained by him shall be the property
of the Company. The Executive shall not, except for the use
of the Company or any of its subsidiaries, use or duplicate
any such documents or objects, nor remove them from
facilities and premises of the Company or any subsidiary,
nor use any information concerning them except for the
benefit of the Company or any subsidiary, at any time. The
Executive will deliver all of the aforementioned documents
and objects, if any, that may be in his possession to the
Company at any time at the request of the Company.
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 CEO 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 in such
employment; neither will the Executive, directly or
indirectly during such period of time, make sales
solicitations to any person, corporation, partnership or
other business entity which is, at the time of such sales
solicitation, a customer or known to him to be a 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
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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.
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 for certified mail, return
receipt requested, postage prepaid, addressed as follows:
(i) If to the Executive;
Xxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
(ii) If to the Company:
McNeilus Companies Inc.
Highway 00 Xxxx
Xxxx Xxxxxx Xxx 00
Xxxxx Xxxxxx, XX 00000
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.
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(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.
(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: _______________________________
Title: _______________________________
Date: _______________________________
Attest: _______________________________
AGREED TO:
By: _______________________________
Title: _______________________________
Date: _______________________________
Attest: _______________________________
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