KEY EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT
THIS AGREEMENT, made and entered into as of the ____ day of ________,
____, by and between Oshkosh Truck Corporation, a Wisconsin corporation
(hereinafter referred to as the "Company"), and ________________________
(hereinafter referred to as the "Executive").
W I T N E S S E T H :
WHEREAS, the Executive is employed by the Company and/or a subsidiary
of the Company in a key executive capacity, and the Executive's services are
valuable to the conduct of the business of the Company;
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that circumstances may arise in which a change in control of the
Company occurs, through acquisition or otherwise, thereby causing uncertainty
about the Executive's future employment with the Company and/or any such
subsidiary without regard to the Executive's competence or past contributions,
which uncertainty may result in the loss of valuable services of the Executive
to the detriment of the Company and its shareholders, and the Company and the
Executive wish to provide reasonable security to the Executive against changes
in the Executive's relationship with the Company in the event of any such change
in control;
WHEREAS, the Company and the Executive are desirous that any proposal
for a change in control or acquisition of the Company will be considered by the
Executive objectively and with reference only to the best interests of the
Company and its shareholders; and
WHEREAS, the Executive will be in a better position to consider the
Company's best interests if the Executive is afforded reasonable security, as
provided in this Agreement, against altered conditions of employment that could
result from any such change in control or acquisition.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto mutually
covenant and agree as follows:
1. Definitions. The following terms are used in this Agreement as
defined in Exhibit A:
Act Covered Termination
Accrued Benefits Effective Date
Affiliate and Associate Employer
Annual Cash Compensation Good Reason
Cause Normal Retirement Date
Change in Control Notice of Termination
Code Person
Competitive Activity Termination Date
Confidential Information Trade Secrets
2. Termination or Cancellation Prior to the Effective Date. The
Company and the Executive shall each retain the right to terminate the
employment of the Executive at any time prior to the Effective Date. If the
Executive's employment is terminated prior to the Effective Date, then this
Agreement shall be terminated and cancelled and of no further force or effect,
and any and all rights and obligations of the parties hereunder shall cease. In
addition, this Agreement shall terminate upon the Executive ceasing to be an
officer of the Company and its Affiliates prior to a Change in Control unless
the Executive can reasonably demonstrate that such change in status occurred
under circumstances described in clause (iii)(B)(1) or (iii)(B)(2) of the
definition of "Effective Date" in Exhibit A.
3. Employment Period. If the Executive is employed by the Employer on
the Effective Date, then the Company will, or will cause the Employer to,
continue thereafter to employ the Executive during the Employment Period (as
hereinafter defined), and the Executive will remain in the employ of the
Employer, in accordance with and subject to the terms and provisions of this
Agreement. For purposes of this Agreement, the term "Employment Period" means a
period (i) commencing on the Effective Date, and (ii) ending at 11:59 p.m.
Oshkosh Time on the earlier of the third anniversary of such date or the
Executive's Normal Retirement Date.
4. Duties. During the Employment Period, the Executive shall, in the
most significant capacities and positions held by the Executive at any time
during the 180-day period preceding the Effective Date or in such other
capacities and positions as may be agreed to by the Company and the Executive in
writing, devote the Executive's best efforts and all of the Executive's business
time, attention and skill to the business and affairs of the Employer, as such
business and affairs now exist and as they may hereafter be conducted.
5. Compensation. During the Employment Period, the Executive shall be
compensated as follows:
(a) The Executive shall receive, at reasonable intervals (but not
less often than monthly) and in accordance with such standard policies as may be
in effect immediately prior to the Effective Date, an annual base salary in cash
equivalent of not less than twelve times the Executive's highest monthly base
salary for the twelve-month period immediately preceding the month in which the
Effective Date occurs or, if higher, annual base salary at the rate in effect
immediately prior to the Effective Date (which base salary shall, unless
otherwise agreed in writing by the Executive, include the current receipt by the
Executive of any amounts that, prior to the Effective Date, the Executive had
elected to defer, whether such compensation is deferred under Section 401(k) of
the Code or otherwise), subject to upward adjustment as provided in Section 6
(such salary amount as adjusted upward from time to time is hereafter referred
to as the "Annual Base Salary").
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(b) The Executive shall receive fringe benefits at least equal in
value to those provided for the Executive at any time during the 180-day period
immediately preceding the Effective Date or, if more favorable to the Executive,
those provided generally at any time after the Effective Date to any executives
of the Company and its Affiliates of comparable status and position to the
Executive. The Executive shall be reimbursed, at such intervals and in
accordance with such standard policies that are most favorable to the Executive
that were in effect at any time during the 180-day period immediately preceding
the Effective Date or, if more favorable to the Executive, those provided
generally at any time after the Effective Date to any executives of the Company
and its Affiliates of comparable status and position to the Executive, for any
and all monies advanced in connection with the Executive's employment for
reasonable and necessary expenses incurred by the Executive on behalf of the
Company, including travel expenses.
(c) The Executive and/or the Executive's family, as the case may
be, shall be included, to the extent eligible thereunder (which eligibility
shall not be conditioned on the Executive's salary grade or on any other
requirement that excludes executives of the Company and its Affiliates of
comparable status and position to the Executive unless such exclusion was in
effect for such plan or an equivalent plan on the date 180 days prior to the
Effective Date), in any and all welfare benefit plans, practices, policies and
programs providing benefits for the Company's salaried employees in general or,
if more favorable to the Executive, to any executives of the Company and its
Affiliates of comparable status and position to the Executive, including but not
limited to group life insurance, hospitalization, medical and dental plans;
provided, that, (i) in no event shall the aggregate level of benefits under such
plans, practices, policies and programs in which the Executive is included be
less than the aggregate level of benefits under plans, practices, policies and
programs of the type referred to in this Section 5(c) in which the Executive was
participating at any time during the 180-day period immediately preceding the
Effective Date and (ii) in no event shall the aggregate level of benefits under
such plans, practices, policies and programs be less than the aggregate level of
benefits under plans, practices, policies and programs of the type referred to
in this Section 5(c) provided at any time after the Effective Date to any
executive of the Company and its Affiliates of comparable status and position to
the Executive.
(d) The Executive shall annually be entitled to not less than the
amount of paid vacation and not fewer than the number of paid holidays to which
the Executive was entitled annually at any time during the 180-day period
immediately preceding the Effective Date or such greater amount of paid vacation
and number of paid holidays as may be made available annually to the Executive
or any other executive of the Company and its Affiliates of comparable status
and position to the Executive at any time after the Effective Date.
(e) The Executive shall be included in all plans providing
additional benefits to any executives of the Company and its Affiliates of
comparable status and position to the Executive, including but not limited to
deferred compensation, split-dollar life insurance, retirement, supplemental
retirement, stock option, stock appreciation, stock bonus and similar or
comparable plans; provided, that, (i) in no event shall the aggregate level of
benefits under such plans be less than the aggregate level of benefits under
plans of the type referred to in this
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Section 5(e) in which the Executive was participating at any time during the
180-day period immediately preceding the Effective Date; (ii) in no event shall
the aggregate level of benefits under such plans be less than the aggregate
level of benefits under plans of the type referred to in this Section 5(c)
provided at any time after the Effective Date to the Executive or any executive
of the Company and its Affiliates of comparable status and position to the
Executive; and (iii) the Company's obligation to include the Executive in bonus
or incentive compensation plans shall be determined by Section 5(f).
(f) To assure that the Executive will have an opportunity to earn
incentive compensation after the Effective Date, the Executive shall be included
in a bonus plan of the Company that shall satisfy the standards described below
(the "Bonus Plan"). Bonuses under the Bonus Plan shall be payable with respect
to achieving such financial or other goals reasonably related to the business of
the Company, including the Employer, as the Company shall establish (the
"Goals"), all of which Goals shall be attainable, prior to the end of the
Employment Period, with approximately the same degree of probability as the
goals under the Company's bonus plan or plans in the form most favorable to the
Executive that was in effect at any time during the 180-day period prior to the
Effective Date (the "Existing Plan") and in view of the Company's existing and
projected financial and business circumstances applicable at the time. The
amount of the bonus (the "Bonus Amount") that the Executive is eligible to earn
under the Bonus Plan shall be no less than the amount of the Executive's highest
maximum potential award under the Existing Plan at any time during the 180-day
period prior to the Effective Date or, if higher, any maximum potential award
under the Bonus Plan or any other bonus or incentive compensation plan in effect
after the Effective Date for the Executive or for any executive of the Company
and its Affiliates of comparable status and position to the Executive (such
bonus amount herein referred to as the "Maximum Bonus"), and if the Goals are
not achieved (and, therefore, the entire Maximum Bonus is not payable), then the
Bonus Plan shall provide for a payment of a Bonus Amount not less than a portion
of the Maximum Bonus reasonably related to that portion of the Goals that were
achieved. Payment of the Bonus Amount (i) shall be in cash, unless otherwise
agreed by the Executive, and (ii) shall not be affected by any circumstance
occurring subsequent to the end of the Employment Period, including termination
of the Executive's employment.
6. Annual Compensation Adjustments. During the Employment Period, the
Board of Directors of the Company (or an appropriate committee thereof) will
consider and appraise, at least annually, the contributions of the Executive to
the Company, and in accordance with the Company's practice prior to the
Effective Date, due consideration shall be given, at least annually, to the
upward adjustment of the Executive's Annual Base Salary (i) commensurate with
increases generally given to other executives of the Company and its Affiliates
of comparable status and position to the Executive, and (ii) as the scope of the
Company's operations or the Executive's duties expand.
7. Termination During Employment Period.
(a) Right to Terminate. During the Employment Period, (i) the
Company shall be entitled to terminate the Executive's employment (A) for Cause,
(B) by reason of the
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Executive's disability pursuant to Section 11, or (C) for any other reason, and
(ii) the Executive shall be entitled to terminate the Executive's employment for
any reason. Any such termination shall be subject to the procedures set forth in
Section 12 and shall be subject to any consequences of such termination set
forth in this Agreement. Any termination of the Executive's employment during
the Employment Period by the Employer shall be deemed a termination by the
Company for purposes of this Agreement.
(b) Termination for Cause or Without Good Reason. If there is a
Covered Termination for Cause or due to the Executive's voluntarily terminating
the Executive's employment other than for Good Reason, then the Executive shall
be entitled to receive only Accrued Benefits.
(c) Termination Giving Rise to a Termination Payment. If there is
a Covered Termination by the Executive for Good Reason, or by the Company other
than by reason of (i) death, (ii) disability pursuant to Section 11, or (iii)
Cause, then the Executive shall be entitled to receive, and the Company shall
promptly pay, Accrued Benefits and, in lieu of further base salary for periods
following the Termination Date, as liquidated damages and severance pay and in
consideration of the covenant of the Executive set forth in Section 13(a), the
Termination Payment pursuant to Section 8(a).
8. Payments Upon Termination.
(a) Termination Payment.
(i) For purposes of this Agreement, the "Termination
Payment" shall be an amount equal to the Annual Cash Compensation
multiplied by the number of years or fractional portion thereof remaining
in the Employment Period determined as of the Termination Date, except that
the Termination Payment shall not be less than the amount of Annual Cash
Compensation. The Termination Payment shall be paid to the Executive in
cash equivalent not later than ten business days after the Termination
Date. The Executive shall not be required to mitigate the amount of the
Termination Payment by securing other employment or otherwise, nor will
such Termination Payment be reduced by reason of the Executive securing
other employment or for any other reason. The Termination Payment shall be
in lieu of any other severance payments to which the Executive is entitled
under the severance policies and practices of the Company and/or any
subsidiary of the Company.
(ii) Notwithstanding any other provision of this Agreement,
if any portion of the Termination Payment or any other payment under this
Agreement, or under any other agreement with or plan of the Company or the
Employer, including, without limitation, the Oshkosh Truck Corporation 1990
Incentive Stock Plan (the "Incentive Stock Plan") or any stock option
agreement (the "Stock Option Agreements") between the Company and the
Executive entered into pursuant to the Incentive Stock Plan (in the
aggregate "Total Payments"), would constitute an "excess parachute
payment," then the Company shall pay the Executive an additional amount
(the "Gross-Up Payment") such that the net amount retained by the Executive
after
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deduction of any excise tax imposed by Section 4999 of the Code (or any
successor provision), and any interest charges or penalties in respect of
the imposition of such excise tax (but not any federal, state or local
income tax, or employment tax) on the Total Payments, and any federal,
state or local income tax, or employment tax, and excise tax upon the
payment provided for by this Section 8(a)(ii) shall be equal to the Total
Payments. Any provisions of the Incentive Stock Plan or the Stock Option
Agreements that provide for a reduction in payments to the Executive
relating to acceleration of vesting of stock options upon a "Change of
Control" (as such term is defined in the Incentive Stock Plan) if such
payments would result in the payment by the Executive of any excise tax
provided for in Section 280G and Section 4999 of the Code are null and void
and of no further force and effect as they apply to the Executive. For
purposes of determining the amount of the Gross-Up Payment, the Executive
shall be deemed to pay federal income tax and employment taxes at the
highest marginal rate of federal income and employment taxation in the
calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rate of taxation in the state
and locality of the Executive's domicile for income tax purposes on the
date the Gross-Up Payment is made, net of the maximum reduction in federal
income taxes that may be obtained from the deduction of such state and
local taxes.
(iii) For purposes of this Agreement, the terms "excess
parachute payment" and "parachute payments" shall have the meanings
assigned to them in Section 280G of the Code (or any successor provision),
and such "parachute payments" shall be valued as provided therein. Present
value for purposes of this Agreement shall be calculated in accordance with
Section 1274(b)(2) of the Code (or any successor provision). Promptly
following a Covered Termination or notice by the Company to the Executive
of its belief that there is a payment or benefit due the Executive that
will result in an excess parachute payment as defined in Section 280G of
the Code (or any successor provision), the Executive and the Company, at
the Company's expense, shall obtain the opinion (which need not be
unqualified) of nationally recognized tax counsel (the "National Tax
Counsel") selected by the Company's independent auditors and acceptable to
the Executive in the Executive's sole discretion, which opinion sets forth
(A) the amount of the Base Period Income, (B) the amount and present value
of Total Payments, (C) the amount and present value of any excess parachute
payments and (D) the amount of any Gross-Up Payment. As used in this
Section 8(a)(iii), the term "Base Period Income" means an amount equal to
the Executive's "annualized includible compensation for the base period" as
defined in Section 280G(d)(1) of the Code (or any successor provision). For
purposes of such opinion, the value of any noncash benefits or any deferred
payment or benefit shall be determined by the Company's independent
auditors in accordance with the principles of Sections 280G(d)(3) and (4)
of the Code (or any successor provisions), which determination shall be
evidenced in a certificate of such auditors addressed to the Company and
the Executive. The opinion of the National Tax Counsel shall be dated as of
the Termination Date and addressed to the Company and the Executive and
shall be binding upon the Company and the Executive. If the National Tax
Counsel so requests in connection with the opinion required by this
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Section, the Executive and the Company shall obtain, at the Company's
expense, and the National Tax Counsel may rely on in providing the opinion,
the advice of a firm of recognized executive compensation consultants as to
the reasonableness of any item of compensation to be received by the
Executive. Notwithstanding the foregoing, the provisions of this Section
8(a), including the calculations, notices and opinions provided for herein,
shall be based upon the conclusive presumption that the following are
reasonable: (1) the compensation and benefits provided for in Section 5 and
(2) any other compensation, including but not limited to the Accrued
Benefits, earned prior to the Termination Date by the Executive pursuant to
the Company's compensation programs if such payments would have been made
in the future in any event, even though the timing of such payment is
triggered by the Change in Control or the Termination Date. Within five
days after the National Tax Counsel's opinion is received by the Company
and the Executive, the Company shall pay (or cause to be paid) or
distribute (or cause to be distributed) to or for the benefit of the
Executive such amounts as are then due to Executive under this Agreement.
(iv) In the event that, upon any audit by the Internal
Revenue Service, or by a state or local taxing authority, of the Total
Payments or Gross-Up Payment, a change is finally determined to be required
in the amount of taxes paid by the Executive, appropriate adjustments shall
be made under this Agreement such that the net amount that is payable to
the Executive after taking into account the provisions of Section 4999 of
the Code shall reflect the intent of the parties as expressed in this
Section 8(a), in the manner determined by the National Tax Counsel.
(v) The Company will bear all costs associated with the
National Tax Counsel and will indemnify and hold harmless the National Tax
Counsel of and from any and all claims, damages, and expenses resulting
from or relating to the National Tax Counsel's determinations pursuant to
this Section 8(a), except for claims, damages or expenses resulting from
the gross negligence or willful misconduct of such firm.
(b) Additional Benefits. If there is a Covered Termination and
the Executive is entitled to Accrued Benefits and the Termination Payment, then
the Executive shall be entitled to the following additional benefits:
(i) The Executive will be entitled to pension benefits in
addition to the most favorable benefits provided for the Executive under
any version of the Oshkosh Truck Corporation Salaried and Clerical
Employees Retirement Plan and any supplemental executive retirement plan of
the Employer providing benefits for the Executive (or any successors to
such plans) in effect at any time during the 180-day period prior to the
Effective Date (the "Retirement Plans"). The amount of additional pension
benefits will be equal to the difference between the amount the Executive
(or in the event of the Executive's death, the Executive's surviving spouse
or other beneficiary) would be actually entitled to receive upon retirement
under the terms and conditions of the Retirement Plans and the amount the
Executive (or such surviving spouse or beneficiary) would have been
entitled to receive under such terms and
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conditions if the Executive's benefits under the Retirement Plans had been
fully vested on the Termination Date and the Executive had continued to
work until the earlier of the Executive's 65th birthday or the end of the
Employment Period at a salary rate equal to the Executive's Annual Base
Salary; provided, however, that in no event will the assumed period of
continued employment extend beyond the date on which the Executive elects
to begin receiving the additional pension benefits. The Executive shall be
entitled to elect to receive the Executive's additional pension benefits in
any form (e.g. joint and survivor) that would have been available to ---
the Executive under the terms and conditions of the Retirement Plans and
(subject to reduction, if any, under such terms) at any time after the
Executive has attained the age at which early retirement is permitted. In
addition, if the Executive starts to receive the Executive's additional
pension benefits before the earliest date on which the Executive is
eligible for unreduced Social Security benefits, then the Executive will
receive an amount equal to the difference between the Executive's estimated
unreduced Social Security benefit and the actual benefit to which the
Executive is entitled until the Executive attains the age when the
Executive is eligible for unreduced benefits.
(ii) Until the earlier of the end of the Employment Period
or such time as the Executive has obtained new employment and is covered by
benefits that in the aggregate are at least equal in value to the following
benefits, the Executive shall continue to be covered, at the expense of the
Company, by the most favorable life insurance, hospitalization, medical and
dental coverage and other welfare benefits provided to the Executive and
the Executive's family during the 180-day period immediately preceding the
Effective Date or at any time thereafter or, if more favorable to the
Executive, coverage as was required hereunder with respect to the Executive
immediately prior to the date Notice of Termination is given.
(iii) The Executive shall receive, at the expense of the
Company, outplacement services, on an individualized basis at a level of
service commensurate with the Executive's most senior status with the
Company during the 180-day period prior to the Effective Date (or, if
higher, at any time after the Effective Date), provided by a nationally
recognized executive placement firm selected by the Company with the
consent of the Executive, which consent will not be unreasonably withheld;
provided that the cost to the Company of such services shall not exceed 15%
of the Executive's Annual Base Salary.
(iv) The Company shall bear up to $10,000 in the aggregate
of fees and expenses of consultants and/or legal or accounting advisors
(other than the National Tax Counsel) engaged by the Executive to advise
the Executive as to matters relating to the computation of benefits due and
payable under this Section 8.
(c) Rabbi Trust. Prior to or simultaneously with a Change of
Control over which the Company has control or within three business days of any
other Change of Control, the Company shall establish an irrevocable grantor
trust (also known as a "rabbi trust") for the benefit of the Executive and other
executives of the Company who are parties to agreements
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with the Company similar to this Agreement for the sole purpose of (i) holding
assets equal in value to the present value at any time after a Change of Control
of the maximum amount of benefits to which the Executive may be entitled under
Section 8(a) and Section 8(b) and to which such other executives may be entitled
under similar provisions of their respective agreements and (ii) distributing
such assets as their payment becomes due. Prior to or simultaneously with a
Change of Control over which the Company has control or within three business
days of any other Change of Control, the Company shall fund such trust with cash
or marketable securities having the value described in clause (i). The Company
shall reasonably calculate the value described in clause (i) assuming that the
date on which such calculation is made is the Termination Date applicable to the
Executive and the corresponding date applicable to such other executives.
9. Death.
(a) Except as provided in Section 9(b), in the event of a Covered
Termination due to the Executive's death, the Executive's estate, heirs and
beneficiaries shall receive all the Executive's Accrued Benefits through the
Termination Date.
(b) If the Executive dies after a Notice of Termination is given
(i) by the Company or (ii) by the Executive for Good Reason, then the
Executive's estate, heirs and beneficiaries shall be entitled to the benefits
described in Section 9(a) and, subject to the provisions of this Agreement, to
such Termination Payment to which the Executive would have been entitled had the
Executive lived. In such event, the Termination Date shall be thirty days
following the giving of the Notice of Termination, subject to extension pursuant
to the definition of "Termination Date" in Exhibit A.
10. Retirement. If, during the Employment Period, the Executive and
the Company shall execute an agreement providing for the early retirement of the
Executive from the Company, or the Executive shall otherwise give notice that
the Executive is voluntarily choosing to retire early from the Company, then the
Executive shall receive Accrued Benefits through the Termination Date; provided,
that if the Executive's employment is terminated by the Executive for Good
Reason or by the Company other than by reason of death, disability or Cause and
the Executive also, in connection with such termination, elects voluntary early
retirement, then the Executive shall also be entitled to receive a Termination
Payment pursuant to Section 8(a).
11. Termination for Disability. If, during the Employment Period, as a
result of the Executive's disability due to physical or mental illness or injury
(regardless of whether such illness or injury is job-related), the Executive
shall have been absent from the Executive's duties hereunder on a full-time
basis for a period of six consecutive months and, within thirty days after the
Company notifies the Executive in writing that it intends to terminate the
Executive's employment (which notice shall not constitute the Notice of
Termination contemplated below), the Executive shall not have returned to the
performance of the Executive's duties hereunder on a full-time basis, then the
Company may terminate the Executive's employment for purposes of this Agreement
pursuant to a Notice of Termination.
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If the Executive's employment is terminated on account of the Executive's
disability in accordance with this Section, then the Executive shall receive
Accrued Benefits in accordance with Section 8(a) and shall remain eligible for
all benefits provided by any long term disability programs of the Company in
effect at the time the Company sends notice to the Executive of its intent to
terminate pursuant to this Section.
12. Termination Notice and Procedure.
(a) Any termination of the Executive's employment during the
Employment Period by the Company or the Executive (other than a termination of
the Executive's employment referenced in the second sentence of the definition
of "Effective Date" in Exhibit A) shall be communicated by written Notice of
Termination to the Executive, if such Notice is given by the Company, and to the
Company, if such Notice is given by the Executive, all in accordance with the
following procedures and those set forth in Section 22:
(i) If such termination is for disability, Cause or Good
Reason, then the Notice of Termination shall indicate in reasonable detail
the facts and circumstances alleged to provide a basis for such
termination.
(ii) Any Notice of Termination by the Company shall have
been approved, prior to the giving thereof to the Executive, by a
resolution duly adopted by a majority of the directors of the Company (or
any successor corporation) then in office, a copy of which shall accompany
the Notice.
(iii) If the Notice is given by the Executive for Good
Reason, then the Executive may cease performing the Executive's duties
hereunder on or after the date 15 days after the delivery of Notice of
Termination (unless the Notice of Termination is based upon clause (vii) of
the definition of "Good Reason" in Exhibit A, in which case the Executive
may cease performing his duties at the time the Executive's employment is
terminated) and shall in any event cease employment on the Termination
Date, if any, arising from the delivery of such Notice. If the Notice is
given by the Company, then the Executive may cease performing the
Executive's duties hereunder on the date of receipt of the Notice of
Termination, subject to the Executive's rights hereunder.
(iv) The recipient of any Notice of Termination shall
personally deliver or mail in accordance with Section 22 written notice of
any dispute relating to such Notice of Termination to the party giving such
Notice within fifteen days after receipt thereof. After the expiration of
such fifteen days, the contents of the Notice of Termination shall become
final and not subject to dispute.
Notwithstanding the foregoing, (A) if the Executive terminates the Executive's
employment after a Change in Control without complying with this Section 12,
then the Executive will be deemed to have voluntarily terminated the Executive's
employment other than for Good Reason and deemed to have delivered a written
Notice of Termination to that effect to the Company as of the date of such
termination and (B) if the Company or the Employer terminates the Executive's
employment after a Change in Control without complying with this
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Section 12, then the Company will be deemed to have terminated the Executive's
employment other than by reason of death, disability or Cause and the Company
will be deemed to have delivered a written Notice of Termination to that effect
to the Executive as of the date of such termination. Under circumstances
described in clause (B) above, the Executive may, but shall not be obligated to,
also deliver a Notice of Termination based upon clause (vii) of the definition
of "Good Reason" in Exhibit A for the purpose of subjecting such Notice to
Section 12(a)(iv).
(b) If a Change in Control occurs and the Executive's employment
with the Employer terminates (whether by the Company, the Executive or
otherwise) within 180 days prior to the Change in Control, then the Executive
may assert that such termination is a Covered Termination by sending a written
Notice of Termination to the Company at any time prior to the first anniversary
of the Change in Control in accordance with the procedures set forth in this
Section 12(b) and those set forth in Section 22. If the Executive asserts that
the Executive terminated the Executive's employment for Good Reason or that the
Company terminated the Executive's employment other than for disability or
Cause, then the Notice of Termination shall indicate in reasonable detail the
facts and circumstances alleged to provide a basis for such assertions. The
Company shall personally deliver or mail in accordance with Section 22 written
notice of any dispute relating to such Notice of Termination to the Executive
within 15 days after receipt thereof. After the expiration of such 15 days, the
contents of the Notice of Termination shall become final and not subject to
dispute.
13. Further Obligations of the Executive.
(a) Competition. The Executive agrees that, in the event of any
Covered Termination where the Executive is entitled to (and receives) Accrued
Benefits and the Termination Payment, the Executive shall not, for a period of
18 months after the Termination Date, without the prior written approval of the
Company's Board of Directors, engage in any Competitive Activity.
(b) Confidentiality. During the Executive's employment by the
Employer and for a period of 18 months after the Termination Date, 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 Employer and except to the extent authorized in
writing by the Board of Directors of the Company or required by any court or
administrative agency. This Section 13(b) shall not, however, be construed to
prohibit competition by the Executive for a longer time or in a broader
territory than that specified in Section 13(a).
(c) Trade Secrets. In addition to the obligations that applicable
law imposes on the Executive in respect of Trade Secrets, during the Executive's
employment by the Employer and thereafter in respect of information for so long
as it remains a Trade Secret, the Executive will keep confidential and protect
all Trade Secrets known to or in the possession of
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the Executive, will not disclose any Trade Secrets to any other person and will
not use any Trade Secrets, except for use or disclosure of Trade Secrets 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 Employer and except to the
extent authorized in writing by the Board of Directors of the Company or
required by any court or administrative agency.
(d) 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 or Trade Secrets, 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, at any time. The Executive will
deliver to the Company all of the aforementioned documents and objects, if any,
that may be in his possession at any time at the request of the Company during
the Executive's employment and in any event upon termination of employment. The
Executive agrees to attend an exit interview upon such termination for purposes,
among others, of determining the Executive's compliance with this Section 13(d).
14. Expenses and Interest. If, after the Effective Date, (i) a dispute
arises with respect to the enforcement of the Executive's rights under this
Agreement or (ii) any legal or arbitration proceeding shall be brought to
enforce or interpret any provision contained herein or to recover damages for
breach hereof, in either case so long as the Executive is not acting in bad
faith, then the Company shall reimburse the Executive for any reasonable
attorneys' fees and necessary costs and disbursements incurred as a result of
such dispute, legal or arbitration proceeding or tax audit or proceeding
("Expenses"), and prejudgment interest on any money judgment or arbitration
award obtained by the Executive calculated at the rate of interest announced by
Firstar Bank, N. A., Milwaukee, Wisconsin, or its successors, from time to time
as its prime or base lending rate from the date that payments to the Executive
should have been made under this Agreement. Within ten days after the
Executive's written request therefor, the Company shall pay to the Executive, or
such other person or entity as the Executive may designate in writing to the
Company, the Executive's reasonable Expenses in advance of the final disposition
or conclusion of any such dispute, legal or arbitration proceeding.
15. Payment Obligations Absolute. The Company's obligation during and
after the Employment Period to pay the Executive the amounts and to make the
benefit and other arrangements provided herein shall be absolute and
unconditional and shall not be affected by any circumstances, including, without
limitation, any setoff, counterclaim, recoupment, defense or other right that
the Company may have against the Executive or anyone else. Except as provided in
Section 14, all amounts payable by the Company hereunder shall be paid without
notice or demand. Each and every payment made hereunder by the Company shall be
final, and the Company will not seek to recover all or any part of such payment
from the Executive, or from whomsoever may be entitled thereto, for any reason
whatsoever.
-12-
16. Successors.
(a) If the Company sells, assigns or transfers all or
substantially all of its business and assets to any Person or if the Company
merges into or consolidates or otherwise combines (where the Company does not
survive such combination) with any Person (any such event, a "Sale of
Business"), then the Company shall assign all of its right, title and interest
in this Agreement as of the date of such event to such Person, and the Company
shall cause such Person, by written agreement in form and substance reasonably
satisfactory to the Executive, to expressly assume and agree to perform from and
after the date of such assignment all of the terms, conditions and provisions
imposed by this Agreement upon the Company. Failure of the Company to obtain
such agreement prior to the effective date of such Sale of Business shall be a
breach of this Agreement constituting "Good Reason" hereunder, except that for
purposes of implementing the foregoing, the date upon which such Sale of
Business becomes effective shall be deemed the Termination Date. In case of such
assignment by the Company and of assumption and agreement by such Person, as
used in this Agreement, "Company" shall thereafter mean such Person that
executes and delivers the agreement provided for in this Section 16 or that
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law, and this Agreement shall inure to the benefit of, and be
enforceable by, such Person. The Executive shall, in the Executive's discretion,
be entitled to proceed against any or all of such Persons, any Person that
theretofore was such a successor to the Company (as defined in the first
paragraph of this Agreement) and the Company (as so defined) in any action to
enforce any rights of the Executive hereunder. Except as provided in this
Subsection, this Agreement shall not be assignable by the Company. This
Agreement shall not be terminated by the voluntary or involuntary dissolution of
the Company.
(b) This Agreement and all rights of the Executive shall inure to
the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, heirs and beneficiaries. All amounts
payable to the Executive under Sections 7, 8, 9, 10, 11 and 14 if the Executive
had lived shall be paid, in the event of the Executive's death, to the
Executive's estate, heirs and representatives; provided, however, that the
foregoing shall not be construed to modify any terms of any benefit plan of the
Company, as such terms are in effect on the Effective Date, that expressly
govern benefits under such plan in the event of the Executive's death.
17. Severability. The provisions of this Agreement shall be regarded
as divisible, and if any of said provisions or any part hereof are declared
invalid or unenforceable by a court of competent jurisdiction, then the validity
and enforceability of the remainder of such provisions or parts hereof and the
applicability thereof shall not be affected thereby.
18. Amendment. This Agreement may not be amended or modified at any
time except by written instrument executed by the Company and the Executive.
19. Withholding. The Company shall be entitled to withhold from
amounts to be paid to the Executive hereunder any federal, state or local
withholding or other taxes or charges which it is from time to time required to
withhold; provided, that the amount so
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withheld shall not exceed the minimum amount required to be withheld by law. The
Company shall be entitled to rely on an opinion of the National Tax Counsel if
any question as to the amount or requirement of any such withholding shall
arise.
20. Certain Rules of Construction. No party shall be considered as
being responsible for the drafting of this Agreement for the purpose of applying
any rule construing ambiguities against the drafter or otherwise. No draft of
this Agreement shall be taken into account in construing this Agreement. Any
provision of this Agreement that requires an agreement in writing shall be
deemed to require that the writing in question be signed by the Executive and an
authorized representative of the Company.
21. Governing Law; Resolution of Disputes.
(a) This Agreement and the rights and obligations hereunder shall
be governed by and construed in accordance with the internal laws of the State
of Wisconsin (excluding any choice of law rules that may direct the application
of the laws of another jurisdiction) except that Section 21(b) shall be
construed in accordance with the Federal Arbitration Act if arbitration is
chosen by the Executive as the method of dispute resolution.
(b) Any dispute arising out of this Agreement shall, at the
Executive's election, be determined by arbitration under the rules of the
American Arbitration Association then in effect (but subject to any evidentiary
standards set forth in this Agreement), in which case both parties shall be
bound by the arbitration award, or by litigation. Whether the dispute is to be
settled by arbitration or litigation, the venue for the arbitration or
litigation shall be Oshkosh, Wisconsin or, at the Executive's election, if the
Executive is no longer residing or working in the Oshkosh, Wisconsin, in the
judicial district encompassing the city in which the Executive resides;
provided, that, if the Executive is not then residing in the United States, then
the election of the Executive with respect to such venue shall be either
Oshkosh, Wisconsin or in the judicial district encompassing that city in the
United States among the thirty cities having the largest population (as
determined by the most recent United States Census data available at the
Termination Date) that is closest to the Executive's residence. The parties
consent to personal jurisdiction in each trial court in the selected venue
having subject matter jurisdiction notwithstanding their residence or situs, and
each party irrevocably consents to service of process in the manner provided
hereunder for the giving of notices.
22. Notice. Notices given pursuant to this Agreement shall be in
writing and, except as otherwise provided by Section 12(a)(iii), shall be deemed
given when actually received by the Executive or actually received by the
Company's Secretary or any officer of the Company other than the Executive. If
mailed, such notices shall be mailed by United States registered or certified
mail, return receipt requested, addressee only, postage prepaid, if to the
Company, to Oshkosh Truck Corporation, Attention: Secretary (or, if the
Executive is then Secretary, to the Chief Executive Officer), ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, or if to the Executive, at the
address set forth below the Executive's signature to this Agreement, or to such
other address as the party to be notified shall have theretofore given to the
other party in writing.
-14-
23. No Waiver. The Executive's or the Company's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
24. Headings. The headings herein contained are for reference only and
shall not affect the meaning or interpretation of any provision of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
OSHKOSH TRUCK CORPORATION
By:
-----------------------------------------
Name:
-------------------------------
Title:
-------------------------------
Attest:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
EXECUTIVE
(SEAL)
--------------------------------------
[name]
[address]
-15-
Exhibit A
CERTAIN DEFINED TERMS
For purposes of this Agreement,
(a) Act. The term "Act" means the Securities Exchange Act of 1934, as
amended.
(b) Accrued Benefits. The term "Accrued Benefits" shall include the
following amounts, payable as described herein: (i) all base salary for the time
period ending with the Termination Date; (ii) reimbursement for any and all
monies advanced in connection with the Executive's employment for reasonable and
necessary expenses incurred by the Executive on behalf of the Company for the
time period ending with the Termination Date; (iii) any and all other cash
earned through the Termination Date and deferred at the election of the
Executive or pursuant to any deferred compensation plan then in effect; (iv)
notwithstanding any provision of any bonus or incentive compensation plan
applicable to the Executive, a lump sum amount, in cash, equal to the sum of (A)
any bonus or incentive compensation that has been allocated or awarded to the
Executive for a fiscal year or other measuring period under the plan that ends
prior to the Termination Date but has not yet been paid (pursuant to Section
5(f) or otherwise) and (B) a pro rata portion to the Termination Date of the
aggregate value of all contingent bonus or incentive compensation awards to the
Executive for all uncompleted periods under the plan calculated as to each such
award as if the target or expected performance Goals with respect to such bonus
or incentive compensation award had been attained; and (v) all other payments
and benefits to which the Executive (or in the event of the Executive's death,
the Executive's surviving spouse or other beneficiary) may be entitled as
compensatory fringe benefits or under the terms of any benefit plan of the
Company, including (subject to Section 8(a)(i)) severance payments under the
Company's severance policies and practices in the form most favorable to the
Executive that were in effect at any time during the 180-day period prior to the
Effective Date. Payment of Accrued Benefits shall be made promptly in accordance
with the Company's prevailing practice with respect to clauses (i) and (ii) or,
with respect to clauses (iii), (iv) and (v), pursuant to the terms of the
benefit plan or practice establishing such benefits.
(c) Affiliate and Associate. The terms "Affiliate" and "Associate"
shall have the respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations of the Act.
(d) Annual Cash Compensation. The term "Annual Cash Compensation"
shall mean the sum of (A) the Executive's Annual Base Salary, plus (B) the
higher of (1) the highest annual bonus or incentive compensation award earned by
the Executive under any cash bonus or incentive compensation plan of the Company
or any of its Affiliates during the three complete fiscal years of the Company
immediately preceding the Termination Date or, if more favorable to the
Executive, during the three complete fiscal years of the Company immediately
preceding the Effective Date; or (2) the highest average annual bonus and/or
incentive
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compensation earned during the three complete fiscal years of the Company
immediately preceding the Termination Date (or, if more favorable to the
Executive, during the three complete fiscal years of the Company immediately
preceding the Effective Date) under any cash bonus or incentive compensation
plan of the Company or any of its Affiliates by the group of executives of the
Company and its Affiliates participating under such plan during such fiscal
years at a status or position comparable to that at which the Executive
participated or would have participated pursuant to the Executive's most senior
position at any time during the 180 days preceding the Effective Date or
thereafter until the Termination Date.
(e) Cause. The Company may terminate the Executive's employment after
the Effective Date for "Cause" only if the conditions set forth in paragraphs
(i) and (ii) have been met and the Company otherwise complies with this
Agreement:
(i) (A) the Executive has committed any act of fraud,
embezzlement or theft in connection with the Executive's duties as an
Executive or in the course of employment with the Company and/or its
subsidiaries; (B) the Executive has willfully and continually failed to
perform substantially the Executive's duties with the Company or any of its
Affiliates (other than any such failure resulting from incapacity due to
physical or mental illness or injury, regardless of whether such illness or
injury is job-related) for an appropriate period, which shall not be less
than 30 days, after the Chief Executive Officer of the Company (or, if the
Executive is then Chief Executive Officer, the Board) has delivered a
written demand for performance to the Executive that specifically
identifies the manner in which the Chief Executive Officer (or the Board,
as the case may be) believes the Executive has not substantially performed
the Executive's duties; (C) the Executive has willfully engaged in illegal
conduct or gross misconduct that is materially and demonstrably injurious
to the Company; (D) the Executive has willfully and wrongfully disclosed
any Trade Secrets or Confidential Information of the Company or any of its
Affiliates; or (E) the Executive has engaged in any Competitive Activity;
and in any such case the act or omission shall have been determined by the
Board to have been materially harmful to the Company and its subsidiaries
taken as a whole.
For purposes of this provision, (1) 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 and (2) any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or upon the instructions
of the Chief Executive Officer or a senior officer of the Company or based
upon the advice of counsel for the Company shall be conclusively presumed
to be done, or omitted to be done, by the Executive in good faith and in
the best interests of the Company.
(ii) (A) The Company terminates the Executive's employment by
delivering a Notice of Termination to the Executive, (B) prior to the time
the Company has terminated the Executive's employment pursuant to a Notice
of Termination, the
A-2
Board, by the affirmative vote of not less than three-quarters (3/4) of the
entire membership of the Board, has adopted a resolution finding that the
Executive was guilty of conduct set forth in this definition of Cause, and
specifying the particulars thereof in detail, at a meeting of the Board
called and held for the purpose of considering such termination (after
reasonable notice to the Executive and an opportunity for the Executive,
together with the Executive's counsel, to be heard before the Board) and
(C) the Company delivers a copy of such resolution to the Executive with
the Notice of Termination at the time the Executive's employment is
terminated.
In the event of a dispute regarding whether the Executive's employment has been
terminated for Cause, no claim by the Company that the Company has terminated
the Executive's employment for Cause in accordance with this Agreement shall be
given effect unless the Company establishes by clear and convincing evidence
that the Company has complied with the requirements of this Agreement to
terminate the Executive's employment for Cause.
(f) Change in Control. A "Change in Control" shall be deemed to have
occurred if the event set forth in any one of the following paragraphs shall
have occurred:
(i) at any time that either no shares of Class A Common Stock
of the Company are issued and outstanding or Excluded Persons have ceased
to beneficially own a majority of the outstanding shares of Class A Common
Stock of the Company, any Person (other than (A) the Company or any of its
subsidiaries, (B) a trustee or other fiduciary holding securities under any
employee benefit plan of the Company or any of its subsidiaries, (C) an
underwriter temporarily holding securities pursuant to an offering of such
securities, (D) a corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportions as their
ownership of stock in the Company or (E) an Exempt Person ("Excluded
Persons")) is or becomes the "Beneficial Owner" (as such term is defined in
Rule 13d-3 under the Act), 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 or its Affiliates after
January 31, 2000, pursuant to express authorization by the Board that
refers to this exception) representing 25% or more of (1) the combined
voting power of the Company's then outstanding voting securities or (2) the
then outstanding shares of common stock of the Company; or
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving: individuals
who, on January 31, 2000, constituted the Board and any new director (other
than a director whose initial assumption of office is in connection with an
actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the Company,
as such terms are used in Rule 14a-11 of Regulation 14A under the Act)
whose appointment or election by the Board or nomination for election by
the Company's shareholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were directors on
January 31, 2000 or whose appointment, election or nomination for election
was previously so approved; or
A-3
(iii) the shareholders of the Company approve a merger,
consolidation or share exchange of the Company with any other corporation
or approve the issuance of voting securities of the Company in connection
with a merger, consolidation or share exchange of the Company (or any
direct or indirect subsidiary of the Company) pursuant to applicable stock
exchange requirements, other than (A) a merger, consolidation or share
exchange that would result in the voting securities of the Company
outstanding immediately prior to such merger, consolidation or share
exchange continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or any
parent thereof) at least 50% of the combined voting power of the voting
securities of the Company or such surviving entity or any parent thereof
outstanding immediately after such merger, consolidation or share exchange,
(B) a merger, consolidation or share exchange effected to implement a
recapitalization of the Company (or similar transaction) in which no Person
(other than an Excluded 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 or its Affiliates after January 31, 2000,
pursuant to express authorization by the Board that refers to this
exception) representing 25% or more of (1) the combined voting power of the
Company's then outstanding voting securities or (2) the then outstanding
shares of common stock of the Company or (C) a merger, consolidation or
share exchange immediately following the effectiveness of which shares of
Class A Common Stock of the Company will remain issued and outstanding and
Excluded Persons will continue to beneficially own a majority of the
outstanding shares of Class A Common Stock of the Company; or
(iv) the shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets (in one transaction or a series of related transactions within any
period of 24 consecutive months), other than a sale or disposition by the
Company of all or substantially all of the Company's assets to an entity at
least 75% of the combined voting power of the voting securities of which
are owned by Persons in substantially the same proportions as their
ownership of the Company immediately prior to such sale.
Notwithstanding the foregoing, no "Change in Control" shall be deemed
to have occurred if there is consummated any transaction or series of integrated
transactions immediately following which the record holders of the common stock
of the Company immediately prior to such transaction or series of transactions
continue to have substantially the same proportionate ownership in an entity
that owns all or substantially all of the assets of the Company immediately
following such transaction or series of transactions.
(g) Code. The term "Code" means the Internal Revenue Code of 1986,
including any amendments thereto or successor tax codes thereof.
A-4
(h) Competitive Activity. The Executive shall engage in a
"Competitive Activity" if the Executive engages in, is employed by, or in any
way advises or acts for, in any capacity where Confidential Information would
reasonably be considered to be useful, or has any material financial interest
(excluding trade debt) in, any business that, as of the Effective Date, is
engaged directly or indirectly in the Geographic Area (as defined below) in the
business of designing, manufacturing or marketing fire apparatus (including,
without limitation, aircraft rescue and firefighting vehicles), refuse truck
bodies or vehicles, concrete mixers, snow removal vehicles, defense trucks or
trailers or their related components, or any other business in which the Company
or any of its subsidiaries is engaged as of the Effective Date. However,
"Competitive Activity" shall not include any business if neither the Company nor
any of its subsidiaries is engaged in such business as of the Termination Date
and the Board of Directors of the Company has approved the exit of the Company
and/or its subsidiaries from such business. Further, the ownership of minority
and noncontrolling shares of any corporation whose shares are listed on a
recognized stock exchange or traded in an over-the-counter market, even though
such corporation may be a competitor of the Company or any subsidiary specified
above, shall not be deemed as constituting a financial interest in such
competitor. "Geographic Area" shall mean an area that extends to all of the
United States and to any other country if the Company has directly or indirectly
(i) sold product for delivery to a customer in that country during the 18 months
preceding the Effective Date, (ii) actively sought to sell product for delivery
to any customer in that country during such period or (iii) made plans, in which
the Executive participated, to sell product for delivery to any customer in that
country during such period unless the Company abandoned such plans prior to the
Effective Date.
(i) Confidential Information. The term "Confidential Information"
shall mean ideas, information, knowledge and discoveries of the Company and/or a
subsidiary of the Company, whether or not patentable, that are not generally
known in the trade or industry, including without limitation defense product
engineering information, marketing, sales, distribution, pricing and bid process
information, product specifications, manufacturing procedures, methods, business
plans, marketing plans, internal memoranda, formulae, 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. "Confidential Information" shall also not include Trade Secrets.
(j) Covered Termination. The term "Covered Termination" means any
termination of the Executive's employment during the Employment Period where the
Termination Date or the date Notice of Termination is delivered is any date on
or prior to the end of the Employment Period.
(k) Effective Date. The term "Effective Date" shall mean the first
date on which a Change in Control occurs. Anything in this Agreement to the
contrary notwithstanding, if (i) a Change in Control occurs, (ii) the
Executive's employment with the Employer terminates (whether by the Company, the
Executive or otherwise) within 180 days prior to the Change in Control and (iii)
it is reasonably demonstrated by the Executive that (A)
A-5
any such termination of employment by the Employer (1) was at the request of a
third party who has taken steps reasonably calculated to effect a Change in
Control or (2) otherwise arose in connection with or in anticipation of a Change
in Control, or (B) any such termination of employment by the Executive took
place subsequent to the occurrence of an event described in clause (ii), (iii),
(iv) or (v) of the definition of "Good Reason" which event (1) occurred at the
request of a third party who has taken steps reasonably calculated to effect a
Change in Control or (2) otherwise arose in connection with or in anticipation
of a Change in Control, then for all purposes of this Agreement the term
"Effective Date" shall mean the day immediately prior to the date of such
termination of employment.
(l) Employer. The term "Employer" means the Company and/or any
subsidiary of the Company that employed the Executive immediately prior to the
Effective Date.
(m) Exempt Person. The term "Exempt Person" shall mean (i) J. ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇.; (ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; (iii) any transferee to which the Persons
identified in clause (i) and (ii) above (the "Moslings") have lawfully
transferred or may lawfully transfer shares of Class A Common Stock of the
Company pursuant to the provisions of the Stock Purchase Agreement dated April
26th, 1996, by and among the Company and the Moslings, as the same may be
amended from time to time; and (iv) any trustee, guardian, custodian, executor,
administrator, fiduciary or other legal representative of the Persons identified
in clauses (i), (ii) and (iii) above or the estates of the Moslings, in their
capacity as such.
(n) Good Reason. The Executive shall have a "Good Reason" for
termination of employment on or after the Effective Date if the Executive
determines in good faith that any of the following events has occurred:
(i) any breach of this Agreement by the Company, including
specifically any breach by the Company of its agreements contained in
Section 4, Section 5 or Section 6, other than an isolated, insubstantial
and inadvertent failure not occurring in bad faith that the Company
remedies promptly after receipt of notice thereof given by the Executive;
(ii) any reduction in the Executive's base salary, percentage of
base salary available as incentive compensation or bonus opportunity or
benefits, in each case relative to those most favorable to the Executive in
effect at any time during the 180-day period prior to the Effective Date
or, to the extent more favorable to the Executive, those in effect after
the Effective Date;
(iii) a material adverse change, without the Executive's prior
written consent, in the Executive's working conditions or status with the
Company or the Employer from such working conditions or status in effect
during the 180-day period prior to the Effective Date or, to the extent
more favorable to the Executive, those in effect after the Effective Date,
including but not limited to (A) a material change in the nature or scope
of the Executive's titles, authority, powers, functions, duties, reporting
requirements or responsibilities, or (B) a material reduction in the level
of support
A-6
services, staff, secretarial and other assistance, office space and
accoutrements, but excluding for this purpose an isolated, insubstantial
and inadvertent event not occurring in bad faith that the Company remedies
promptly after receipt of notice thereof given by the Executive;
(iv) the relocation of the Executive's principal place of
employment to a location more than 50 miles from the Executive's principal
place of employment on the date 180 days prior to the Effective Date;
(v) the Employer requires the Executive to travel on Employer
business to a materially greater extent than was required during the
180-day period prior to the Effective Date;
(vi) failure by the Company to obtain the agreement referred to
in Section 16(a) as provided therein; or
(vii) the Company or the Employer terminates the Executive's
employment after a Change in Control without delivering a Notice of
Termination in accordance with Section 12;
provided that (A) any such event occurs following the Effective Date or (B) in
the case of any event described in clauses (ii), (iii), (iv) or (v) above, such
event occurs on or prior to the Effective Date under circumstances described in
clause (iii)(B)(1) or (iii)(B)(2) of the definition of "Effective Date." In the
event of a dispute regarding whether the Executive terminated the Executive's
employment for "Good Reason" in accordance with this Agreement, no claim by the
Company that such termination does not constitute a Covered Termination shall be
given effect unless the Company establishes by clear and convincing evidence
that such termination does not constitute a Covered Termination. Any election by
the Executive to terminate the Executive's employment for Good Reason shall not
be deemed a voluntary termination of employment by the Executive for purposes of
any other employee benefit or other plan.
(o) Normal Retirement Date. The term "Normal Retirement Date" means
the date the Executive reaches "Normal Retirement Age" as defined in the Oshkosh
Truck Corporation Salaried and Clerical Employees Retirement Plan as in effect
on the date hereof, or the corresponding date under any successor plan of the
Employer as in effect on the Effective Date.
(p) Notice of Termination. The term "Notice of Termination" means a
written notice as contemplated by Section 12.
(q) Person. The term "Person" shall have the meaning given in Section
3(a)(9) of the Act, as modified and used in Sections 13(d) and 14(d) thereof.
(r) Termination Date. Except as otherwise provided in Section 9(b)
and Section 16(a), the term "Termination Date" means (i) if the Executive's
employment is terminated by the Executive's death, the date of death; (ii) if
the Executive's employment is
A-7
terminated by reason of voluntary early retirement, as agreed in writing by the
Company and the Executive, the date of such early retirement that is set forth
in such written agreement; (iii) if the Executive's employment is terminated for
purposes of this Agreement by reason of disability pursuant to Section 11,
thirty days after the Notice of Termination is given; (iv) if the Executive's
employment is terminated by the Executive voluntarily (other than for Good
Reason), the date the Notice of Termination is given; and (v) if the Executive's
employment is terminated by the Company (other than by reason of disability
pursuant to Section 11) or by the Executive for Good Reason, thirty days after
the Notice of Termination is given. Notwithstanding the foregoing,
(A) If the Executive shall in good faith give a Notice of
Termination for Good Reason and the Company notifies the Executive
that a dispute exists concerning the termination within the fifteen
day period following receipt thereof, then the Executive may elect to
continue the Executive's employment during such dispute and the
Termination Date shall be determined under this paragraph. If the
Executive so elects and it is thereafter determined that the Executive
terminated the Executive's employment for Good Reason in accordance
with this Agreement, then the Termination Date shall be the earlier of
(1) the date on which the dispute is finally determined, either (x) by
mutual written agreement of the parties or (y) in accordance with
Section 21 or (2) the date of the Executive's death. If the Executive
so elects and it is thereafter determined that the Executive did not
terminate the Executive's employment for Good Reason in accordance
with this Agreement, then the employment of the Executive hereunder
shall continue after such determination as if the Executive had not
delivered the Notice of Termination asserting Good Reason and there
shall be no Termination Date arising out of such Notice. In either
case, this Agreement continues, until the Termination Date, if any, as
if the Executive had not delivered the Notice of Termination except
that, if it is finally determined that the Executive terminated the
Executive's employment for Good Reason in accordance with this
Agreement, then the Executive shall in no case be denied the benefits
described in Section 8 (including a Termination Payment) based on
events occurring after the Executive delivered the Executive's Notice
of Termination.
(B) Except as provided in paragraph (A) above, if the
party receiving the Notice of Termination notifies the other party
that a dispute exists concerning the termination within the fifteen
day period following receipt thereof and it is finally determined that
termination of the Executive's employment for the reason asserted in
such Notice of Termination was not in accordance with this Agreement,
then (1) if such Notice was delivered by the Executive, then the
Executive will be deemed to have voluntarily terminated the
Executive's employment other than for Good Reason by means of such
Notice and (2) if delivered by the Company, then the Company will be
deemed to have terminated the Executive's employment other than by
reason of death, disability or Cause by means of such Notice.
A-8
(s) Trade Secrets. "Trade Secrets" means "trade secrets" as defined
in Wis. Stats. Section 134.90(1)(c), as such definition may be amended from time
to time, of the Company and/or a subsidiary of the Company, as well as other
information as to which the Company and/or a subsidiary of the Company has an
obligation of confidentiality or secrecy to any third party.
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