10.3-1
EMPLOYMENT AGREEMENT
This Agreement is made as of this 1st day of August, 1996 by and
between SOUTH CHARLESTON STAMPING & MANUFACTURING COMPANY, a West Virginia
corporation with a mailing address at 3100 MacCorkle Avenue S.W., South
Charleston, West Virginia 25303 (the "Company"), and JOHN T. WISE
("Employee"), residing at 44 Spruce Ridge Drive, Hurricane, West Virginia
25526. In consideration of the mutual covenants contained in this Agreement,
the Company and the Employee hereby agree as follows:
ARTICLE 1
TERM OF EMPLOYMENT
1.1. TERM. The Company hereby employs the Employee and the Employee
accepts employment with the Company, on the terms and conditions of this
Agreement, for a period of three years commencing as of August 1, 1996, and
ending on July 31, 1999, unless otherwise terminated as provided herein.
The period during which Employee is employed hereunder is hereinafter
referred to as the "Term."
ARTICLE 2
DUTIES OF EMPLOYEE
2.1. DUTIES. During the Term, the Employee shall serve as President
and Chief Executive Officer of the Company, shall perform such services in
a responsible executive or managerial capacity for the Company as may be
requested by the Board of Directors (the "Board") of the Company and will
devote his full time to the faithful and diligent performance of the
duties inherent in, and implied by, this executive position. Employee shall
be available to travel as the needs of the business require.
ARTICLE 3
COMPENSATION OF EMPLOYEE
3.1. BASE SALARY. As compensation for services rendered under
this Agreement, Employee shall be entitled to receive from the Company a
salary of $140,000 per year, as may be increased from time to time at the
sole discretion of the Board (the "Base Salary") payable in equal
installments in accordance with the Company's regular policy.
3.2. ADDITIONAL COMPENSATION. Employee shall be paid annually
such bonus for his services as may be determined, from time to time, in the
sole discretion of the Board.
10.3-2
ARTICLE 4
EMPLOYEE EXPENSES AND BENEFITS
4.1. EXPENSES. Employee shall be entitled to reimbursement
during the term for reasonable travel and other out-of-pocket expenses
necessarily incurred in the performance of his duties hereunder, upon
submission of statements and bills in accordance with the then regular
procedures of the Company.
4.2. BENEFITS. Employee shall be entitled to benefits in
accordance with the Company's policy for executive officers and other
benefits provided to all salaried employees of the Company, with a vacation
period at the maximum allowable by the Company's policy. Employee
acknowledges that the foregoing does not require the Company to continue any
benefit or policy currently in effect or adopted hereafter.
ARTICLE 5
CONFIDENTIALITY AND NONCOMPETITION
5.1. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
5.1.1. Employee shall not disclose to anyone, or use or
otherwise exploit during the Term and for a period of two years thereafter
for the benefit of anyone other than the Company, any confidential business
information, which shall be defined as data and information relating to the
business of the Company (whether constituting a trade secret or not) which is
or has been disclosed to Employee or of which Employee became aware as a
consequence of or through his relationship to the Company and which has value
to the Company and is not generally known to its competitors (the
"Confidential Information"). The Confidential Information shall include the
following (to the extent not generally known to competitors), (i) any trade
secrets, customer lists, details of client or consultant contracts, marketing
plans, product or service development plans, business acquisition plans of
the Company, or (ii) any portion or phase of any technical information,
ideas, "know-how", discoveries, product designs, computer programs (including
source or object codes), processes, procedures, formulae or improvements of
the Company, and whether or not in written or tangible form, and including
all memoranda, notes, plans, reports, records, documents and other evidence
thereof.
5.1.2. The foregoing notwithstanding, the term "Confidential
Information" does not include, and there shall be no obligation hereunder
with respect to, (i) information that becomes generally available to the
public other than as a result of a disclosure by Employee, and (ii)
business methods applicable to businesses generally. Employee shall not have
any obligation hereunder to keep confidential any Confidential Information if
and to the extent disclosure of any thereof is required by law. Employee
shall provide the Company with prompt notice of such requirement, prior to
making any disclosure, so that the Company may seek an appropriate protective
or restrictive order.
5.1.3. At the request of the Company, Employee agrees to
deliver to the Company, at any time during the Term or upon or after the
termination thereof, all Confidential Information which he may possess or
control. Employee agrees that all Confidential Information of the Company
10.3-3
discovered or made by him during the term of employment hereunder belongs to
the Company, and Employee hereby assigns and transfers to the Company all
such Confidential Information.
5.2 NONCOMPETITION AND NONSOLICITATION. In view of the unique
and valuable services it is expected Employee will render to the Company,
Employee's knowledge of the customers, trade secrets, and other proprietary
information relating to the business of the Company and its customers and
suppliers it is expected Employee will obtain, and in consideration of the
compensation to be received hereunder, Employee agrees (a) that he will not
during the period he is employed by the Company under this Agreement or
otherwise Participate in (hereinafter defined in this Section 5.2) any other
business or organization, whether or not such business or organization now is
or shall then be competing with or of a nature similar to the business of the
Company, and (b) for a period of one year after he ceases to be employed by
the Company under this Agreement or otherwise, he will not compete with or be
engaged in the same business as, or Participate In any other business or
organization which during such one-year period competes with or is engaged in
the same business as the Company, with respect to any product or service sold
or activity engaged in up to the time of such cessation in any geographical
area in which at the time of such cessation such product or service is sold
or activity engaged in, except that in each case the provisions of this
Section 5.2 will not be deemed breached merely because Employee owns not more
than 1% of the outstanding common stock of a corporation, if, at the time of
its acquisition by Employee, such stock is listed on a national securities
exchange, is reported on NASDAQ, or is regularly traded in the over-the-
counter market by a member of a national securities exchange. The term
"Participate In" shall mean: "directly or indirectly, for his own benefit or
for, with, or through any other person, firm, or corporation, own, manage,
operate, control, loan money to, or participate in the ownership, management,
operation, or control of, or be connected as a director, officer, employee,
partner, consultant, agent, independent contractor, or otherwise with, or
acquiesce in the use of his name in." Employee will not directly or
indirectly reveal the name of, solicit or interfere with, or endeavor to
entice away from the Company any of its suppliers, customers, or employees.
Employee will not directly or indirectly employ any person who, at any time
up to such cessation, was an employee of the Company within a period of two
years after such person leaves the employ of the Company. Since a breach of
the provisions of this Article 5 could not adequately be compensated by money
damages, the Company shall be entitled, in addition to any other right and
remedy available to it, to an injunction restraining such breach or a
threatened breach, and in either case no bond or other security shall be
required in connection therewith. Employee agrees that the provisions of
this Article 5 are necessary and reasonable to protect the Company in the
conduct of its business. If any restriction contained in this Article 5
shall be deemed to be invalid, illegal, or unenforceable by reason of the
extent, duration, or geographical scope thereof, or otherwise, then the court
making such determination shall have the right to reduce such extent,
duration, geographical scope, or other provisions hereof, and in its reduced
form such restriction shall then be enforceable in the manner contemplated
hereby.
Solely in the event that this Agreement expires without the Company
offering to renew it on terms at least as favorable to Employee as those
then in effect, then the Company agrees to pay Employee, in consideration
for his agreements in this Section 5.2, $200,000, in a single lump sum
payment within thirty days after the date of termination.
10.3-4
5.3. RETURN OF PAYMENTS. In the event that Employee breaches any
provision of this Article 5, Employee agrees to return, within five business
days of the date on which such provision was breached, all Payments made by
the Company and further agrees to forfeit any future Payments he may have
been entitled to receive. The foregoing shall be in addition to, and not in
substitution for, any other remedies available to the Company at law or in
equity. The term "Payments" as used herein shall mean any payment made by
the Company on termination of the Employee's employment hereunder, including
any Change in Control Payment.
ARTICLE 6
TERMINATION OF EMPLOYMENT
6.1. Notwithstanding anything herein contained, if on or after the
date hereof and prior to the end of the Employment Period, (a) either (i)
Employee shall be physically or mentally incapacitated or disabled or
otherwise unable fully to discharge his duties hereunder, (ii) Employee shall
be convicted of a felony or of a misdemeanor involving moral turpitude, (iii)
Employee shall commit any act or omit to take any action in bad faith and to
the detriment of the Company, or (iv) Employee shall breach any material term
of this Agreement and fail to correct such breach within ten days after
commission thereof, then, and in each such case, the Company shall have the
right to give notice of termination of Employee's services hereunder as of a
date (not earlier than 10 days from such notice) to be specified in such
notice, and this Agreement shall terminate on the date so specified, or (b)
Employee shall die, then this Agreement shall terminate on the date of
Employee's death, whereupon Employee or his estate, as the case may be, shall
be entitled to receive only his Base Salary at the rate provided in Article
3 and the benefits provided pursuant to Article 4 to the date on which
termination shall take effect. In the event of the termination of this
Agreement by the Company prior to the end of the Term, for any reason other
than as set forth above in this Section 6.1 or in Section 6.3, Employee shall
be entitled, in addition to his Base Salary and benefits to the date of
termination, the greater of (a) his Base Salary (at the then current rate)
for the balance of the Term or (b) an amount equal to one year of Base Salary
(at the then current rate) (the "Termination Payment"). Such payment shall
be made in a lump sum within thirty days after the date of termination. If
Employee is entitled to a Termination Payment or a Change in Control Payment
(as defined below) then Employee's medical, life and disability benefit
payments, if any, shall continue to be paid by the Company for a period of
one year following the date of termination, unless Employee commences
employment with another employer prior to the end of such one-year period, in
which case the Company shall not pay for such benefits from and after the
date Employee is eligible for coverage under such new employee's benefit
plans. Nothing contained in this Article 6 shall be deemed to limit any
right the Company may have to terminate Employee's employment hereunder upon
any ground permitted by law.
6.2. CHANGE IN CONTROL. In the event of a change in control (as
defined below), Employee shall have the option at any time during the six
months following the date that the change in control occurs to terminate his
employment. Under such a change in control termination, the Employee will
receive from the Company compensation in an amount equal to 2.99 times his
then Base Salary less any Base Salary paid to him from the date of the change
in control to the date of termination (the "Change in Control Payment") in a
single lump sum payment within thirty days after the date of termination. A
10.3-5
change in control shall mean (i) the occurrence of any event resulting in
Checker Motors Corporation ("Checker") owning less than 51% of the
outstanding shares of common stock of the Company, (ii) the occurrence of any
event resulting in Great Dane Holdings Inc. ("GDHI") owning less than 51% of
the outstanding shares of common stock of Checker, or (iii) a change in
control of GDHI whereby the current owners of GDHI (or their estates, heirs
or family members) individually or collectively beneficially own less than
50% of the outstanding shares of GDHI.
6.3. PRESS RELEASE. In the event of the termination of the Employee for
any reason other than death, the Employee and the Company will agree to a
statement (the "Termination Statement") to be issued in response to any
inquiry concerning the termination and Employee's job performance while in
the employ of the Company. Neither the Company nor the Employee shall make
any statement concerning the termination or the job performance of the
Employee other than the Termination Statement.
ARTICLE 7
GENERAL PROVISIONS
7.1. NOTICES. Any notices to be given under this Agreement by
either party to the other may be effected in writing either by personal
delivery or by certified mail. Mailed notices shall be addressed to the
parties at the addresses appearing in the introductory paragraph of this
Agreement (in the case of the Company c/o Chief Financial Officer, with a
copy to Checker Motors Corporation, 2016 North Pitcher Street, Kalamazoo,
Michigan 49007, Attn: President), but each party may change the address by
written notice in accordance with this paragraph. Notices delivered
personally shall be communicated as of actual receipt; mailed notices shall
be deemed communicated as of two days after mailing.
7.2. ENTIRE AGREEMENT. This Agreement supersedes any and all
other agreements, whether oral or in writing, between the parties with
respect to the employment of Employee by the Company, and this Agreement
contains all of the covenants and agreements between the parties with respect
to the employment in any manner whatsoever. Each party to this Agreement
acknowledges that no representations inducements, promises or agreement,
orally or otherwise, have been made by any party, or anyone acting on behalf
of any party, that are not embodied in this Agreement, and that no other
agreement, statement, or promise not contained in this Agreement shall be
valid or binding. Any modification of this Agreement will be effective only
if it is in writing signed by the party to be charged.
7.3. SURVIVAL. The covenants, agreements, representations, and
warranties contained in or made pursuant to this Agreement shall survive
Employee's termination of employment, irrespective of any investigation made
by or on behalf of any party.
7.4. WAIVER. Any waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other
provision of this Agreement. The failure of a party to insist upon strict
adherence to any term of this Agreement on one or more occasions shall not be
considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement. Any
waiver must be in writing.
10.3-6
7.5. BINDING EFFECT. Employee's rights and obligations under
this Agreement shall not be transferable by assignment or otherwise, such
rights shall not be subject to commutation, encumbrance, or the claims of
Employee's creditors, and any attempt to do any of the foregoing shall be
void. The provisions of this Agreement shall be binding upon and inure to
the benefit of Employee and his heirs and personal representatives, and shall
be binding upon and inure to the benefit of the Company and its successors
and assigns.
7.6. NO THIRD PARTY BENEFICIARIES.
This Agreement does not create, and shall not be construed as
creating, any rights enforceable by any person not a party to this Agreement
(except as provided in Section 7.6).
7.7. COUNTERPARTS; GOVERNING LAW. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. It shall
be governed by and construed in accordance with the laws of the State of West
Virginia, without giving effect to conflict of laws.
7.8. SEPARABILITY. If any provision of this Agreement is invalid,
illegal, or unenforceable, the balance of this Agreement shall remain
in effect, and if any provision is inapplicable to any person or
circumstance, it shall nevertheless remain applicable to all other persons
and circumstances.
7.9. HEADINGS. The headings in this Agreement are solely for the
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
SOUTH CHARLESTON STAMPING & MANUFACTURING
COMPANY
By: /s/ Larry D. Temple
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Name: Larry D. Temple
Title: Vice President
/s/ John T. Wise
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John T. Wise