EXHIBIT 10.13
KEY EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT
THIS AGREEMENT, made and entered into as of the 2nd day of
September, 1994, by and between OSHKOSH TRUCK CORPORATION, a Wisconsin
corporation (hereinafter referred to as the "Company") and Robert G. Bohn
(hereinafter referred to as "Executive"):
W I T N E S S E T H :
WHEREAS, the Executive is employed by the Company in a key executive
capacity and possesses intimate knowledge of the business and affairs of
the Company; and
WHEREAS, the Company desires to insure, insofar as possible, that it
will continue to have the benefit of the Executive's services and to
protect its confidential information and goodwill; and
WHEREAS, the Company recognizes that circumstances may arise in which
a change in the control of the Company through acquisition or otherwise
occurs, thereby causing uncertainty of employment 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; and
WHEREAS, both the Company and the Executive are desirous that any
proposal for a change in control or acquisition will be considered by the
Executive objectively and with reference only to the business 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
which 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.
(a) Act. For purposes of this Agreement, the term "Act" means the
Securities Exchange Act of 1934.
(b) Base Period Income. For purposes of this Agreement, the term
"Base Period Income" shall be an amount equal to the Executive's
Annualized Includible Compensation for the Base Period as defined in
Section 280G(d)(1) and (2) of the Code (as hereinafter defined).
(c) Cause. "Cause" for termination by the Company of the
Executive's employment after a Change of Control of the Company (as
hereinafter defined) shall, for purposes of this Agreement, be limited to
(i) the engaging by the Executive in willful and intentional conduct which
has caused demonstrable and serious injury to the Company, monetary or
otherwise, as evidenced by a determination in a binding and final
judgment, order or decree of a court or administrative agency of competent
jurisdiction, in effect after exhaustion or lapse of all rights of appeal,
in an action, suit or proceeding, whether civil, criminal, administrative
or investigative; (ii) conviction of a felony, as evidenced by binding and
final judgment, order, or decree of a court of competent jurisdiction, in
effect after exhaustion or lapse of all right of appeal; and (iii) willful
and unreasonable neglect or refusal by the Executive to perform the
Executive's duties or responsibilities (unless significantly changed
without the Executive's consent).
(d) Change in Control of the Company. For purposes of this
Agreement, a "Change in Control of the Company" shall mean a change in
control of a nature that would be required to be reported in response to
Item 5(f) of Schedule 14A of Regulation 14A promulgated under the Act, as
amended; provided that, without limitation, such a change in control shall
be deemed to have occurred (i) if any Person (as hereinafter defined),
other than the Company or any Person who on the date hereof is a director
or officer of the Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Act, as amended), directly or indirectly
of securities of the Company representing 25% of the combined voting power
of the Company's then outstanding securities; or (ii) during any period of
two consecutive years during the term of this Agreement, individuals who,
at the beginning of such period, constituted the Board of Directors of the
Company cease, for any reason, to constitute at least a majority thereof,
unless the election or nomination for election of each new director was
approved by a vote of at least two-thirds of the directors then still in
office who were directors at the beginning of the period.
(e) Code. For purposes of this Agreement, the term "Code" means the
Internal Revenue Code of 1986, including any amendments thereto or
successor tax codes thereof.
(f) Employment Period. For purposes of this Agreement, the term
"Employment Period" means a period commencing on the date of a Change of
Control of the Company, and ending on the earlier of the third anniversary
of such date or the Executive's Normal Retirement Date.
(g) Good Reason. For purposes of this Agreement, the Executive
shall have a "Good Reason" for termination of employment after a Change
in Control of the Company in the event of:
(i) any breach of this Agreement by the Company, including
specifically any breaches by the Company of its agreements contained in
Section 4 hereof.
(ii) the removal of the Executive from or any failure to re-
elect the Executive to any of the positions held on the date of the Change
in Control of the Company or any other positions to which the Executive
shall thereafter be elected or assigned except in the event that such
removal or failure to re-elect relates to the termination by the Company
of the Executive's employment for Cause or by reason of disability
pursuant to Section 12 hereof;
(iii) a good faith determination by the Executive that there has
been a significant adverse change, without the Executive's written
consent, in working conditions or status, including but not limited to (A)
a significant change in the nature or scope of the Executive's authority,
powers, functions, duties or responsibilities, or (B) a reduction in the
level of support services, staff, secretarial and other assistance, office
space and accoutrements available to a level below that which is
reasonably necessary for the performance of such duties.
(iv) any voluntary termination of employment by the Executive
following the first anniversary of the Change in Control of the Company.
(h) Person. For purposes of this Agreement, "Person" shall mean any
individual, partnership, joint venture, association, trust, corporation or
other entity (including a "group" as defined in Section 13(d)(3) of the
Act).
(i) Normal Retirement Date. For purposes of this Agreement, the
term "Normal Retirement Date" means Normal Retirement Date as defined in
the Oshkosh Truck Corporation Retirement Plan for Salaried Employees.
(j) Termination Date. For purposes of this Agreement, except as
otherwise provided in Section 10(b) hereof, 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 terminated
by reason of voluntary early retirement, the agreed upon date of such
early retirement; (iii) if the Executive's employment is terminated by
reason of disability, thirty (30) days after the delivery of the Notice of
Termination unless the Executive shall, prior to the expiration of such
period, have returned to the performance of the Executive's duties on a
full-time basis; (iv) if the Executive's employment is terminated by the
Executive voluntarily other than for Good Reason the date of the Notice of
Termination; and (v) if the Executive's employment is terminated by the
Company other than by reason of disability, or by the Executive for Good
Reason, thirty (30) days after the delivery of the Notice of Termination;
provided, that if termination is for Cause pursuant to Section 1(c)(iii)
of this Agreement, that the conduct constituting such Cause as described
by the Company in its Notice of Termination has not been cured by the
Executive within such thirty (30) day period. Notwithstanding the
foregoing, the Termination Date shall be delayed as follows: (A) if,
within any period referred to above following receipt of a Notice of
Termination the party receiving the Notice of Termination notifies the
other party in good faith that a dispute exists concerning the
termination, the Termination Date shall be the earlier of the date on
which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding and final arbitration award or the
end of the Employment Period and (B) if the opinion required to be
delivered pursuant to Section 9(b)(ii) hereof shall not have been
delivered, the Termination Date shall be the earlier of the date on which
such opinion is delivered or the end of the Employment Period.
2. Termination or Cancellation Prior to Change in Control. The
Company and the Executive shall each retain the right to terminate the
employment of the Executive at any time prior to a Change in Control of
the Company. In the event the Executive's employment is terminated prior
to a Change in Control of the Company this Agreement shall be terminated
and canceled and of no further force and effect and any and all rights and
obligations of the parties hereunder shall cease.
3. Employment Period. If a Change in Control of the Company occurs
when the Executive is employed by the Company, the Company will continue
thereafter to employ the Executive during the Employment Period, and the
Executive will remain in the employ of the Company, in accordance with the
terms and provisions of this Agreement.
4. Duties. During the Employment Period, the Executive shall, in the
same capacities and positions held by the Executive at the time of such
Change in Control of the Company 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 Company, as such
business and affairs now exist and as they may hereafter be conducted. The
services which are to be performed by the Executive hereunder are to be
rendered in the same metropolitan area in which the Executive was
employed at the time of such Change in Control, or in such other place or
places as shall be mutually agreed upon in writing by the Executive and
the Company from time to time. Without the Executive's consent the
Executive shall not be required to be absent from the metropolitan area
more than 45 days in any fiscal year.
5. Compensation. During the Employment Period, the Executive shall
be compensated as follows:
(a) The Executive shall receive, at such intervals and in accordance
with such standard policies as may be in effect on the date of the Change
in Control of the Company, an annual salary not less than the Executive's
annual salary as in effect as of the date of the Change in Control of the
Company, subject to adjustment as herein-after provided;
(b) The Executive shall be reimbursed, at such intervals and in
accordance with such standard policies as may be in effect on the date of
the Change in Control of the Company, 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 shall be included to the extent eligible thereunder
in any and all plans providing general benefits for the Company's
employees, including but not limited to, group life insurance,
hospitalization, disability, medical, dental, pension, profit sharing and
stock bonus plans and be provided any and all other benefits and
perquisites made available to other employees of comparable status and
position, at the expense of the Company on a comparable basis;
(d) The Executive shall receive annually not less than the amount of
paid vacation and not fewer than the number of paid holidays received
annually immediately prior to the Change in Control of the Company or such
greater amount of paid vacation and number of paid holidays as may be made
available annually to other employees of comparable status and position
with the Company and;
(e) The Executive shall be included in all plans providing special
benefits to senior executives, including but not limited to bonus,
deferred compensation, incentive compensation, supplemental pension, stock
option, stock appreciation, stock bonus and similar or comparable plans
extended by the Company from time to time to senior corporate officers,
key employees and other employees of comparable status.
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's operating efficiency, growth, production and
profits, and, in accordance with past practice, due consideration shall be
given to the upward adjustment of the Executive's compensation rate, at
least annually, commensurate with increases generally given to other
senior corporate officers and key employees and as the scope and success
of the Company's operations or the Executive's duties expand.
7. Termination For Cause or Without Good Reason. If, during the
Employment Period, the Executive's employment is terminated for Cause, or
if the Executive voluntarily terminates the Executive's employment other
than for Good Reason, any such termination to be subject to the procedures
set forth in Section 13 hereof, then the Executive shall be entitled to
receive only Accrued Benefits pursuant to Section 9 hereof.
8. Termination Giving Rise to a Termination Payment.
(a) If, during the Employment Period, the Executive's employ-
ment is terminated by the Executive for Good Reason or by the Company
other than by reason of death or disability or Cause, then the Executive
shall be entitled to receive and the Company shall promptly pay Accrued
Benefits and, in lieu of further salary payments for periods following the
Termination Date, as liquidated damages and severance pay, a Termination
Payment.
(b) If, during the Employment Period, the Executive's employment is
terminated and the Executive is entitled to Accrued Benefits and a
Termination Payment, then the Executive shall continue to be covered at
the expense of the Company by the same or equivalent hospital, medical,
dental, accident, disability and life insurance coverage as Executive was
covered by immediately prior to the date the Notice of Termination is
received until the earlier of the expiration of the Employment Period or
until the Executive has obtained new employment and thereby becomes
eligible for comparable benefits.
9. Payments Upon Termination.
(a) Accrued Benefits. For purposes of this Agreement, the Executive's
Accrued Benefits shall include the following amounts, payable as described
herein: (i) All salary earned or accrued through 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 through the Termination Date; (iii) any and all other cash
benefits previously earned through the Termination Date and deferred at
the election of the Executive or pursuant to any deferred compensation
plans then in effect; (iv) a lump sum payment of the bonus or incentive
compensation otherwise payable to the Executive with respect to the year
in which termination occurs under any bonus or incentive compensation plan
or plans in which the Executive is a participant; and (v) all other
payments and benefits (other than severance payments) to which the
Executive may be entitled under the terms of any benefit plan of, or
individual employment contract with, the Company. Payment of Accrued
Benefits shall be made promptly in accordance with the Company's
prevailing practice with respect to Subsections (i) and (ii), or with
respect to Subsections (iii), (iv) and (v) pursuant to the terms of the
benefit plan or contract establishing such benefits.
(b) Termination Payment.
(i) For purposes of this Agreement and subject to the limits set
forth in Section 9(b)(ii) hereof, the Executive's Termination Payment
shall be an amount equal to (A) the Executive's annual salary, as in
effect on the date of the Change in Control of the Company as adjusted
upward, from time to time, pursuant to Section 6 hereof plus (B) the
amount of the highest annual bonus award paid to the Executive with
respect to the three years preceding the Termination Date (the aggregate
amount set forth in (A) and (B) hereof shall hereafter be referred to as
"Annual Cash Compensation"), times the number of years (rounded to the
nearest one-twelfth) remaining in the Employment Period determined as of
the date the Notice of Termination is received, provided, however, that
such amount shall not be less than the amount of Executive's Annual Cash
Compensation. The Termination Payment shall be payable in one of two
alternative methods as determined pursuant to Sec. 17 hereof, either (x)
in a lump sum within ten (10) days of the (y) Date hereunder or in 36
equal and consecutive monthly installments with the first such installment
due and payable on the first business day of the month immediately
following the Termination Date. Such Termination Payment shall not be
reduced by any present value or similar factor, and the Executive shall
not be required to mitigate the amount of such payment by securing other
employment or otherwise, nor will such payment be reduced by reason of the
Executive securing other employment or for any other reason. The
Termination Payment shall be paid in lieu of any severance pay due to the
Executive pursuant to any severance or employment agreement with or
severance payment plan 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 (in
the aggregate "Total Payments") would constitute an "excess parachute
payment," then the Total Payments to be made to the Executive shall be
reduced such that the value of the aggregate Total Payments that the
Executive is entitled to receive shall be One Dollar ($1) less than the
maximum amount which the Executive may receive without becoming subject to
the tax imposed by Section 4999 of the Code or which the Company may pay
without loss of deduction under Section 280G(a) of the Code. 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, and such "parachute payments" shall be valued as provided therein.
Within sixty days following delivery of the Notice of Termination or
notice by the Company to the Executive of its belief that there is a
payment or benefit due the Executive which will result in an excess
parachute payment as defined in Section 280G of the Code, the Executive
and the Company, at the Company's expense, shall obtain the opinion of
such legal counsel, which need not be unqualified, as the Executive may
choose, which sets forth (a) the amount of the Base Period Income of the
Executive, (b) the present value of Total Payments and (c) the amount and
present value of any excess parachute payments. The opinion of such legal
counsel shall be supported by the opinion of a certified public accounting
firm and, if necessary, a firm of recognized executive compensation
consultants. Such opinion shall be binding upon the Company and the
Executive. In the event that such opinion determines that there would be
an excess parachute payment, the Termination Payment hereunder or any
other payment determined by such counsel to be includible in Total
Payments shall be reduced or eliminated as specified by the Executive in
writing delivered to the Company within thirty days of his receipt of such
opinion or, if the Executive fails to so notify the Company, then as the
Company shall reasonably determine, so that under the bases of
calculations set forth in such opinion there will be no excess parachute
payment. The provisions of this sub- paragraph 9(b)(ii), including the
calculations, notices and opinion provided for herein shall be based upon
the conclusive presumption that (x) the compensation and benefits provided
for in Section 5 hereof and (y) 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, are reasonable.
(iii) If, notwithstanding the provisions of subparagraph (ii) of
this Section 9(b), it is ultimately determined by a court or pursuant to a
final determination by the Internal Revenue Service that any portion of
Total Payments is subject to excise tax under Section 4999 of the Code,
the Executive shall be entitled to receive a lump-sum payment sufficient
to place the Executive in the same net after-tax position, computed by
using the Special Tax Rate as such term is defined below, that the
Executive would have been in had such payment not been subject to such
excise tax and had the Executive not incurred any interest charges or
penalties in respect of the imposition of such excise tax. For purposes of
this Agreement, the Special Tax Rate shall be the highest effective
federal and state marginal tax rates applicable to the Executive in the
year the payment contemplated under this paragraph is made.
(iv) In the event that the provisions of Sections 280G and 4999
of the Code are repealed, Sections 9(b)(ii) and 9(b)(iii) shall be of no
further force or effect.
10. Death. If the Executive shall die during the Employment Period,
the Executive's employment shall terminate and the Executive's estate,
heirs and beneficiaries shall receive all the Executive's Accrued Benefits
through the Termination Date.
11. 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
voluntarily choose to retire early from the Company, 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, the Executive shall also be entitled to receive a
Termination Payment pursuant to Section 8(a) hereof.
12. 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 six consecutive months, and within thirty (30)
days after the Company notifies the Executive in writing that it intends
to terminate the Executive's employment, the Executive shall not have
returned to the performance of the Executive's duties hereunder on a
full-time basis, the Company may terminate the Executive's employment
pursuant to the procedure set forth in Section 13 hereof. During the term
of the Executive's disability prior to termination, the Executive shall
continue to receive all salary and benefits payable under Section 5
hereof, including participation in all employee benefit plans and programs
in which the Executive was entitled to participate immediately prior to
the disability, provided that the Executive's continued participation is
possible under the general terms and provisions of such plans and
programs. In the event the Executive's employment is terminated on account
of the Executive's disability in accordance with this Section, the
Executive shall receive any Accrued Benefits in accordance with Section 9
hereof and shall remain eligible for all benefits provided by any long
term disability programs of the Company in effect at the time of such
termination.
13. Termination Notice and Procedure. Any termination by the
Company, or the Executive, of the Executive's employment during the
Employment Period shall be communicated by written Notice of Termination
to the Executive if such Notice is delivered by the Company and to the
Company if such Notice is delivered by the Executive, all in accordance
with the following procedures:
(a) The Notice of Termination shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances alleged to provide a basis for
termination.
(b) Any Notice of Termination by the Company shall be approved by a
resolution duly adopted by a majority of the directors of the Company (or
any successor corporation) then in office, specifying in detail the basis
for such termination.
(c) The Executive shall have 30 days or such longer period as the
Company may determine to be appropriate, to cure any conduct or act, if
curable, alleged to provide grounds for termination of the Executive's
employment under this Agreement.
(d) In the event that, within 30 days following the date of receipt
of the Notice of Termination, the opinion referred to in Section 9(b)(ii)
hereof shall not have been delivered or one party notifies the other that
a dispute exists concerning the termination, the Executive's employment
under this Agreement shall not be terminated until such determination is
delivered or until the dispute is finally resolved either by mutual
written agreement of the parties, or pursuant to a final arbitration award
in accordance with Section 22 hereof, as the case may be; provided,
however, that in no event shall such employment extend beyond the
Employment Period.
14. Further Obligations of the Executive.
(a) Competition. The Executive agrees that if, during the Employment
Period, the Executive's employment is terminated in a manner such that the
Executive will or has received a Termination Payment, the Executive shall
not, during the balance of the Employment Period, (i) act in a similar
capacity for any business enterprise which competes to a substantial
degree with the Company or (ii) without the prior written approval of the
Company's Board of Directors, participate in the management of any
business enterprise that engages in substantial competition with the
Company or its subsidiaries, where such enterprise's sales of any product
or service competitive with any products or service of the Company or its
subsidiaries amount to 10% of such enterprise's net sales for its most
recently completed fiscal year and the Company's consolidated net sales of
said product or service amount to 10% of the Company's consolidated net
sales for its most recently completed fiscal year; provided, however, that
nothing in this Section 14(a) shall prohibit the Executive from owning
stock or other securities of a competitor amounting to less than five
percent of the outstanding capital stock of such competitor.
(b) Confidential Information. During and following the Executive's
employment by the Company, the Executive shall hold in confidence and not
directly or indirectly disclose or use or copy or make lists of any
confidential information or proprietary data of the Company, except to the
extent authorized in writing by the Board of Directors of the Company or
required by any court or administrative agency, other than to an employee
of the Company or a person to whom disclosure is reasonably necessary or
appropriate in connection with the performance by the Executive of duties
as an executive of the Company. Confidential information shall not include
any information known generally to the public or any information of a type
not otherwise considered confidential by persons engaged in the same
business or a business similar to that of the Company. All records, files,
documents and materials or copies thereof, relating to the Company's
business which the Executive shall prepare, or use, or come into contact
with, shall be and remain the sole property of the Company and shall be
promptly returned to the Company upon termination of employment with the
Company.
15. Expenses and Interest. If, after a Change in Control of the
Company a good faith dispute arises with respect to the enforcement of the
Executive's rights under this Agreement or if any legal or arbitration
proceeding shall be brought in good faith to enforce or interpret any
provision contained herein, or to recover damages for breach hereof, the
Executive shall recover from the Company any reasonable attorney's fees
and necessary costs and disbursements incurred as a result of such
dispute, legal or arbitration proceeding, and prejudgment interest on any
money judgment or arbitration award obtained by the Executive calculated
at the rate of interest announced by FIRSTAR BANK MILWAUKEE, N.A., from
time to time as its prime rate from the date that payments to him should
have been made under this Agreement.
16. Payment Obligations Absolute. Except as set forth in Section 18
of this Agreement, the Company's obligation during and after the
Employment Period to pay the Executive the compensation and to make the
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 which the Company
may have against him or anyone else. 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.
17. Election of Payment Alternatives. At any time prior to the
Termination Date, the Executive shall have the right to specify the
alternative method of payment of the Termination Payment to be used by
filing a written election thereof with the Secretary of the Company;
provided, however, if no election has been filed by the Executive prior to
the Term Date, the method of payment of the Term Payment shall be at the
option of the Board of Directors. If the Term Payment is made using the
installment method, the Company shall purchase a life insurance policy on
the life of the Executive prior to the first installment payment naming
the Company as beneficiary. Such insurance shall have a term of at least
37 months and shall provide proceeds in the event of the Executive's death
at least equal to the amount of remaining installment payments at the time
of the Executive's death. The Company shall not, however, be required to
purchase such life insurance policy if the total cost of such life
insurance policy exceeds the amount of the Termination Payment.
18. Successors.
(a) If the Company sells, assigns or transfers all or substantially
all of its business and assets to any Person, excluding affiliates of the
Company, or if the Company merges into or consolidates or otherwise
combines with any Person which is a continuing or successor entity, then
the Company shall assign all of its right, title and interest in this
Agreement as of the date of such event to the Person which is either the
acquiring or successor corporation, and such Person shall assume and
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 assignment shall be a breach of this
Agreement. In case of such assignment by the Company and of assumption and
agreement by such Person, all further rights as well as all other
obligations of the Company under this Agreement thenceforth shall cease
and terminate and thereafter the expression "the Company" wherever used
herein shall be deemed to mean such Person(s).
(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, estates, executors, administrators, heirs and
beneficiaries. All amounts payable to the Executive under Sections 7, 10,
11 and 12 hereof if the Executive had lived shall be paid, in the event of
the Executive's death, to the Executive's estate, heirs and
representatives. All amounts still payable to the Executive, if any, under
Section 8 hereof on the date of the Executive's death shall be paid to the
Executive's estate, heirs and administrators our of the proceeds of the
life insurance policy referred to in Section 17 hereof, provided, however,
that if such life insurance policy is not obtained because the total cost
of the policy exceeds the amount of the Termination Payment, the Company
shall have no further obligation to make such payments after the
Executive's death. This Agreement shall inure to the benefit of, be
binding upon and be enforceable by, any successor, surviving or
resulting corporation or other entity to which all or sub-
stantially all of the Company's business and assets shall be
transferred. This Agreement shall not be terminated by the
voluntary or involuntary dissolution of the Company.
19. Enforcement. 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,
the validity and enforceability of the remainder of such provisions or
parts hereof and the applicability thereof shall not be affected thereby.
20. Amendment. This Agreement may not be amended or modified at any
time except by written instrument executed by the Company and the
Executive.
21. 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. The Company shall be entitled to rely on an opinion
of counsel if any question as to the amount or requirement of any such
withholding shall arise.
22. Governing Law; Arbitration. This Agreement and the rights and
obligations hereunder shall be governed by and construed in accordance
with the laws of the State of Wisconsin. Any dispute arising out of this
Agreement shall be determined by arbitration in Milwaukee, Wisconsin under
the rules of the American Arbitration Association then in effect and
judgment upon any award pursuant to such arbitration may be enforced in
any court having jurisdiction thereof.
23. Notice. Notices given pursuant to this Agreement shall be in
writing and shall be deemed given when received and if mailed, shall be
mailed by United States registered or certified mail, return receipt
requested, addressee only, postage prepaid, if to the Company, to the
Board of Directors of Oshkosh Truck Corporation, Attention: Corporate
Secretary, 2307 Oregon St., Oshkosh, WI 54903, or if to the Executive, at
the address set forth below the Executive's signature line of this
Agreement, or to such other address as the party to be notified shall have
given to the other.
24. No Waiver. No waiver by either party at any time of any breach
by the other party of, or compliance with, any condition or provision of
this Agreement to be performed by the other party shall be deemed a waiver
of similar or dissimilar provisions or conditions at the same time or any
prior or subsequent time.
25. 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: R. Eugene Goodson
Title: Chairman & CEO
[CORPORATE SEAL] Attest: ________________________
Name: Connie S. Stellmacher
Title: Adm. Asst/Asst Corp Secretary
__________________________________(SEAL)
Name: Robert G. Bohn (Executive)
Address: 1225 Washington Ave
Oshkosh, WI 54901