April 11, 1995
Mr. William D. Anderson
Clark Distribution Services Inc.
7300 South Cicero Avenue
Chicago, Illinois, 60629-5888
Dear Mr. Anderson:
Clark Equipment Company (CLARK) wishes to assure itself and its
subsidiaries of your continued services. Accordingly, in
consideration of services to be rendered by you in the future,
the following Agreement is proposed.
1. Change in Control.
-----------------
1.1 If following a change in control of CLARK, as defined
in Section 1.5 hereof, your employment with CLARK terminates
other than for cause (as defined in Section 1.4), you will be
entitled to the benefits provided for in this Section 1. For the
purpose of this Agreement, employment by a wholly-owned
subsidiary of CLARK in the United States shall be deemed to be
employment by CLARK.
1.2 If any time within two years subsequent to a change in
control of CLARK, you terminate your employment with CLARK within
six months after the occurrence of one or more of the following
events: (i) a change in the location of your employment;
(ii) a reduction in the nature and scope of your employment
responsibilities or duties for the Clark Distribution Services,
Inc. Business Unit; or (iii) any reduction in your compensation,
benefits or perquisites, either separately or in the aggregate,
such termination will be treated as a termination by CLARK other
than for cause.
1.3 If after a change in control of CLARK you are terminated
by CLARK other than for cause (as defined in Section 1.4), CLARK
will pay to you, within fifteen (15) days thereafter, an amount
equal to two times the sum of your then base salary and your
target bonus. For the purpose of this Agreement, "target bonus"
means the difference between average total compensation and
average base salary as determined from the Hay Compensation
Report for Industrial Management for the last year preceding the
year in which such termination occurs, for the number of Hay
Client Points of your position at the time of such termination,
but in any event for not less than the number of Hay Client
Points of your position on the date of this Agreement. In
addition, CLARK will continue to
Mr. William D. Anderson
April 11, 1995
Page 2
provide health care benefits to you and your dependents of the
type and in the amounts in effect immediately prior to any
termination by CLARK other than for cause and life insurance
coverage to you in the amount of two times your salary, in each
case until the earlier of the date on which you obtain suitable
employment or the second anniversary of the date of such
termination. In addition, CLARK will pay for the cost of
professional outplacement services selected by you, in your sole
discretion, to obtain new employment; provided, however, that the
total cost of such services to be paid by CLARK shall not exceed
fifteen percent (15%) of your base salary as of the date your
employment terminates.
1.4 For the purposes of this Section 1, a termination of
your employment by CLARK shall be "other than for cause" if it is
either (i) treated as such pursuant to Section 1.2 hereof or
(ii) for any reason other than wilful misconduct by you that has
substantially prejudiced the interests of CLARK or its
subsidiaries.
1.5 For purposes of this Agreement, the term "change in
control of CLARK" shall mean any of the following events:
(1) the acquisition of beneficial ownership of 25% or
more of the shares of the Common Stock of CLARK by or for any
person (as such term is defined in Section 14(d)(2) of the
Securities Exchange Act of 1934), including for purposes of
calculating such person's ownership, all shares beneficially
owned by the affiliates and associates (as such terms are defined
in Rule 12b-2 of the Securities Exchange Act of 1934) of such
person, provided, however, that the term "person" shall not
include any of the following: CLARK, any subsidiary of CLARK,
any employee benefit plan or employee stock plan of CLARK or of
any subsidiary of CLARK, any dividend reinvestment plan of CLARK,
any person or entity organized, appointed or established by CLARK
for or pursuant to the terms of any such plan, or any person
which becomes the beneficial owner of 25% or more of such shares
then outstanding solely as a result of the acquisition by CLARK
or any employee benefit plan of CLARK of shares of the Common
Stock of CLARK, provided that such person does not thereafter
acquire any shares of the Common Stock of CLARK, or
(2) during any period of 24 consecutive months,
individuals who at the beginning of such period constitute the
Board of Directors of CLARK cease for any reason to constitute a
majority thereof, unless the election, or nomination for election
by CLARK's stockholders, 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 such period, or
(3) CLARK's stockholders shall approve (a) the merger
or consolidation of CLARK with or into another corporation and
CLARK shall not be the surviving corporation, or (b) an agreement
to sell or otherwise dispose of all or substantially all of
CLARK's assets (including a plan of liquidation).
Mr. William D. Anderson
April 11, 1995
Page 3
1.6 In the event of a change in control of CLARK, all
subsequent legal and accounting fees and expenses incurred by you
in connection with, or in prosecuting or defending, any dispute
arising out of or relating to this Agreement shall be paid by
CLARK.
2. Governing Law. This Agreement shall be governed by the
-------------
laws of the State of Indiana.
3. Non-Competition. For such time as you are employed by
---------------
CLARK, and thereafter for a period of two years following the
cessation of your employment with CLARK for any reason, you agree
to refrain from competing with CLARK or any of its subsidiaries
in the United States or elsewhere in the world with respect to
any aspect of the business conducted by the Clark Distribution
Services Inc. Business Unit of CLARK ("CDS") (collectively "the
Business"), including without limitation, the design,
manufacture, sale or distribution of products which are similar
to or competitive with those of CDS, or becoming an employee or
representative of any person, firm or company which competes with
CDS or any of its subsidiaries in the United States or elsewhere
in the world with respect to the Business. If a court shall
finally hold that the time or territory or any other provisions
stated in this Section 3 constitute an unreasonable restriction
upon you, the provisions of this Agreement shall not be rendered
void, but shall instead apply as to time for a period of two
years and as to territory in the continental United States or to
such lesser extent as such court may judicially determine
constitutes a reasonable restriction under the circumstances
involved.
4. Confidential Information. During the course of your
------------------------
employment with CLARK and its subsidiaries, you have received,
developed or otherwise become aware of confidential information
of CLARK and its subsidiaries. For a period of five years
following the cessation of your employment with CLARK for any
reason you will not use, disclose, give, sell or otherwise
divulge to any person, firm or corporation any confidential
information regarding CLARK or any of its subsidiaries. The term
"confidential information" shall include but not be limited to
any aspect of CLARK's (or its subsidiaries') business, trade
secrets, strategies, potential acquisitions or divestitures,
discussions relating to acquisitions or divestitures, financial
statements or other financial information, forecasts, operations,
business plans, prices, discounts, products, product
specifications, designs, plans, processes, data and know-how,
ideas, technical information and
Mr. William D. Anderson
April 11, 1995
Page 4
intellectual property, except such information as is otherwise
made publicly available by CLARK or its subsidiaries. You will
not remove from CLARK's possession any confidential information,
and shall return to CLARK on or before the termination of your
employment any confidential information which may have previously
been in your possession. The provisions of this Section 4 shall
survive any termination of this Agreement. Any other agreements
between CLARK and you relating to confidentiality shall, to the
extent not inconsistent herewith, remain in effect.
5. Employees. For a period of twenty-four (24) months from
---------
the date of the cessation of your employment with CLARK, you
agree to refrain from suggesting, persuading, or inducing any key
employees of CLARK or its subsidiaries to leave their employ.
If the foregoing is entirely satisfactory to you, please sign and
return the attached copy of this letter, whereupon it shall
constitute an agreement between us as of the date first set forth
above.
Very truly yours,
CLARK EQUIPMENT COMPANY
By: /s/ Leo J. McKernan
---------------------------
Title: Chairman, President and
-------------------------
Chief Executive Officer
-------------------------
Accepted and Agreed to:
/s/ William D. Anderson
-----------------------
4.06.95
April 11, 1995
Mr. David D. Hunter
Blaw-Knox Construction Equipment Corporation
750 Broadway Avenue East
Mattoon, Illinois 61938-4600
Dear Mr. Hunter:
Clark Equipment Company (CLARK) wishes to assure itself and its
subsidiaries of your continued services. Accordingly, in
consideration of services to be rendered by you in the future,
the following Agreement is proposed.
1. Change in Control.
-----------------
1.1 If following a change in control of CLARK, as defined
in Section 1.5 hereof, your employment with CLARK terminates
other than for cause (as defined in Section 1.4), you will be
entitled to the benefits provided for in this Section 1. For the
purpose of this Agreement, employment by a wholly-owned
subsidiary of CLARK in the United States shall be deemed to be
employment by CLARK.
1.2 If any time within two years subsequent to a change in
control of CLARK, you terminate your employment with CLARK within
six months after the occurrence of one or more of the following
events: (i) a change in the location of your employment;
(ii) a reduction in the nature and scope of your employment
responsibilities or duties for the Blaw-Knox Construction
Equipment Corporation Business Unit of CLARK; or (iii) any
reduction in your compensation, benefits or perquisites, either
separately or in the aggregate, such termination will be treated
as a termination by CLARK other than for cause.
1.3 If after a change in control of CLARK you are
terminated by CLARK other than for cause (as defined in
Section 1.4), CLARK will pay to you, within fifteen (15) days
thereafter, an amount equal to two times the sum of your then
base salary and your target bonus. For the purpose of this
Agreement, "target bonus" means the difference between average
total compensation and average base salary as determined from the
Hay Compensation Report for Industrial Management for the last
year preceding the year in which such termination occurs, for the
number of Hay Client Points of your position at the time of such
termination, but in any event for not less than the number of Hay
Client Points of your position on the date of this Agreement. In
addition, CLARK will continue to
Mr. David D. Hunter
April 11, 1995
Page 2
provide health care benefits to you and your dependents of the
type and in the amounts in effect immediately prior to any
termination by CLARK other than for cause and life insurance
coverage to you in the amount of two times your salary, in each
case until the earlier of the date on which you obtain suitable
employment or the second anniversary of the date of such
termination. In addition, CLARK will pay for the cost of
professional outplacement services selected by you, in your sole
discretion, to obtain new employment; provided, however, that the
total cost of such services to be paid by CLARK shall not exceed
fifteen percent (15%) of your base salary as of the date your
employment terminates.
1.4 For the purposes of this Section 1, a termination of
your employment by CLARK shall be "other than for cause" if it is
either (i) treated as such pursuant to Section 1.2 hereof or
(ii) for any reason other than wilful misconduct by you that has
substantially prejudiced the interests of CLARK or its
subsidiaries.
1.5 For purposes of this Agreement, the term "change in
control of CLARK" shall mean any of the following events:
(1) the acquisition of beneficial ownership of 25% or
more of the shares of the Common Stock of CLARK by or for any
person (as such term is defined in Section 14(d)(2) of the
Securities Exchange Act of 1934), including for purposes of
calculating such person's ownership, all shares beneficially
owned by the affiliates and associates (as such terms are defined
in Rule 12b-2 of the Securities Exchange Act of 1934) of such
person, provided, however, that the term "person" shall not
include any of the following: CLARK, any subsidiary of CLARK,
any employee benefit plan or employee stock plan of CLARK or of
any subsidiary of CLARK, any dividend reinvestment plan of CLARK,
any person or entity organized, appointed or established by CLARK
for or pursuant to the terms of any such plan, or any person
which becomes the beneficial owner of 25% or more of such shares
then outstanding solely as a result of the acquisition by CLARK
or any employee benefit plan of CLARK of shares of the Common
Stock of CLARK, provided that such person does not thereafter
acquire any shares of the Common Stock of CLARK, or
(2) during any period of 24 consecutive months,
individuals who at the beginning of such period constitute the
Board of Directors of CLARK cease for any reason to constitute a
majority thereof, unless the election, or nomination for election
by CLARK's stockholders, 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 such period, or
(3) CLARK's stockholders shall approve (a) the merger
or consolidation of CLARK with or into another corporation and
CLARK shall not be the surviving corporation, or (b) an agreement
to sell or otherwise dispose of all or substantially all of
CLARK's assets (including a plan of liquidation).
Mr. David D. Hunter
April 11, 1995
Page 3
1.6 In the event of a change in control of CLARK, all
subsequent legal and accounting fees and expenses incurred by you
in connection with, or in prosecuting or defending, any dispute
arising out of or relating to this Agreement shall be paid by
CLARK.
2. Governing Law. This Agreement shall be governed by the
-------------
laws of the State of Indiana.
3. Non-Competition. For such time as you are employed by
---------------
CLARK, and thereafter for a period of two years following the
cessation of your employment with CLARK for any reason, you agree
to refrain from competing with CLARK or any of its subsidiaries
in the United States or elsewhere in the world with respect to
any aspect of the business conducted by the Blaw-Knox
Construction Equipment Corporation Business Unit of CLARK ("Blaw-
Knox") (collectively "the Business"), including without
limitation, the design, manufacture, sale or distribution of
products which are similar to or competitive with those of Blaw-
Knox, or becoming an employee or representative of any person,
firm or company which competes with Blaw-Knox or any of its
subsidiaries in the United States or elsewhere in the world with
respect to the Business. If a court shall finally hold that the
time or territory or any other provisions stated in this
Section 3 constitute an unreasonable restriction upon you, the
provisions of this Agreement shall not be rendered void, but
shall instead apply as to time for a period of two years and as
to territory in the continental United States or to such lesser
extent as such court may judicially determine constitutes a
reasonable restriction under the circumstances involved.
4. Confidential Information. During the course of your
------------------------
employment with CLARK and its subsidiaries, you have received,
developed or otherwise become aware of confidential information
of CLARK and its subsidiaries. For a period of five years
following the cessation of your employment with CLARK for any
reason you will not use, disclose, give, sell or otherwise
divulge to any person, firm or corporation any confidential
information regarding CLARK or any of its subsidiaries. The term
"confidential information" shall include but not be limited to
any aspect of CLARK's (or its subsidiaries') business, trade
secrets, strategies, potential acquisitions or divestitures,
discussions relating to acquisitions or divestitures, financial
statements or other financial information, forecasts, operations,
business plans, prices, discounts, products, product
specifications, designs, plans,
Mr. David D. Hunter
April 11, 1995
Page 4
processes, data and know-how, ideas, technical information and
intellectual property, except such information as is otherwise
made publicly available by CLARK or its subsidiaries. You will
not remove from CLARK's possession any confidential information,
and shall return to CLARK on or before the termination of your
employment any confidential information which may have previously
been in your possession. The provisions of this Section 4 shall
survive any termination of this Agreement. Any other agreements
between CLARK and you relating to confidentiality shall, to the
extent not inconsistent herewith, remain in effect.
5. Employees. For a period of twenty-four (24) months from
---------
the date of the cessation of your employment with CLARK, you
agree to refrain from suggesting, persuading, or inducing any key
employees of CLARK or its subsidiaries to leave their employ.
If the foregoing is entirely satisfactory to you, please sign and
return the attached copy of this letter, whereupon it shall
constitute an agreement between us as of the date first set forth
above.
6. Supplemental Retirement Benefits.
--------------------------------
CLARK agrees to provide you with the benefits of the Clark
Supplemental Executive Retirement Plan for David D. Hunter as set
forth in Exhibit I to this Agreement attached hereto.
Very truly yours,
CLARK EQUIPMENT COMPANY
By: /s/ Leo J. McKernan
---------------------------
Title: Chairman, President and
-------------------------
Chief Executive Officer
-------------------------
Accepted and Agreed to:
/s/ David D. Hunter
-----------------------
4.06.95
EXHIBIT I
---------
April 11, 1995
Mr. David D. Hunter
750 Broadway Avenue East
Mattoon, Illinois 61938
Dear Mr. Hunter:
In consideration for your service as President of Blaw-Knox Construction
Equipment Corporation ("Blaw-Knox"), Clark Equipment Company ("CLARK") agrees
to provide you with supplemental retirement benefits subject to the terms and
conditions set forth below.
Specifically, CLARK hereby adopts the following plan, to be known as the
Clark Supplemental Executive Retirement Plan for David D. Hunter
(hereinafter, "this Plan"):
1. Eligibility.
-----------
At the time when you or your beneficiary qualify for and begin to receive
pension benefits from the Clark Equipment Company Retirement Program for
Salaried Employees (the "Program"), CLARK will make monthly supplemental
retirement benefit payments to you or your beneficiary, subject to the terms
and conditions set forth herein.
2. Benefit Amount.
--------------
The amount of the monthly supplemental retirement benefits will be the amount
(if any) by which the amount determined under paragraph A. below exceeds the
amount determined under paragraph B. below, subject to the provisions of
paragraph C. below.
A. The amount determined under this paragraph is the amount of monthly
pension benefits that would be payable to you or your beneficiary
under the Program if (i) the limitations of Internal Revenue Code
Sections 415 and 401(a)(17), and of any other provision of such
Code or any other law or regulation that limits either the amount
of pension benefits or the
Mr. David D. Hunter Page 2 April 11, 1995
amount of compensation that can be used to determine pension
benefits under the Program were disregarded and (ii) your cash
bonus payments received from CLARK, regardless of whether paid
before the Effective Date of this Plan, were included in your basic
annual compensation rate (as defined in the Program) as of January
1 of the year in which each such bonus payment is made.
B. The amount determined under this paragraph is the amount of monthly
pension benefits payable to your or your beneficiary under the
Program.
C. The following provisions apply to this Section 2 and to the
determination of the amounts under paragraphs A. and B. above:
(1) In determining the amounts under paragraphs A. and B., the
offset against benefits payable under the Program for the
value of your account under the CLARK Leveraged Employee Stock
Ownership Plan (as provided in Section 2.14 of the Program)
will be disregarded.
(2) The determinations under both paragraphs A. and B. will be
based on the form of benefit (including any optional form of
benefit) that you elect to receive under the Program, and
subject to the adjustment factors applicable to such form of
benefits.
(3) The supplemental benefit payable hereunder shall be in the
same form as your benefits payable under the Program and
subject to the adjustment factors applicable under the Program
to such form of benefit.
3. Commencement and Duration.
-------------------------
The supplemental benefits payable hereunder shall commence at the same time
as, and continue only so long as, benefits are payable to you or your
beneficiary under the Program.
Mr. David D. Hunter Page 3 April 11, 1995
4. Beneficiary.
-----------
As used in this Plan, your "beneficiary" is any person, including your
spouse, eligible to receive benefits under the Program or this Plan. Unless
you have, in accordance with rules established from time to time by the
Administrator, designated otherwise, your beneficiary or beneficiaries under
this Plan shall be the same person or persons and in the same proportions and
under the same conditions as your beneficiary or beneficiaries under the
Program.
5. Administrator.
-------------
This Plan will be administered by an "Administrator" which shall be CLARK or
at CLARK's election, one or more employees of CLARK who are designated as
"Administrator" by the Chief Executive Officer of CLARK. No person who is an
Administrator shall be liable for any act or action, whether of commission or
omission, taken by any other person, or by any officer, agent, or employee;
nor, except in circumstances involving his bad faith, for anything done or
omitted to be done by himself; and CLARK shall indemnify and hold each
Administrator harmless from any claims of such liability and all costs
(including attorney's fees) resulting therefrom.
6. Claims.
------
Any claim for benefits or payments under this Plan by you or your Beneficiary
shall be made in writing and delivered to CLARK. If you, or your Beneficiary
following your death (collectively, the "Claimant"), notifies CLARK in
writing that he believes he has been denied any benefit payable under this
Plan, either in total or by the payment of an amount less than the full
benefit or payment to which the Claimant would normally be entitled, CLARK
shall advise the Claimant in writing of the amount of the benefit if any, and
the specific reasons for any denial of benefits. CLARK shall also furnish
the Claimant at that time with a written notice containing:
(a) specific references to pertinent provisions of this Plan;
(b) a description of any additional material or information necessary
for the Claimant to perfect the claim if possible, and an
explanation of why such material or information is needed; and
(c) an explanation of the claim review procedure set forth in this
Section 9.
Mr. David D. Hunter Page 4 April 11, 1995
Such written notice shall be sent to the Claimant within 90 days of the
date the claim is filed. This 90-day period may be extended by the
Administrator for an additional 90 days, provided a Claimant is notified of
the reason for the extension and a date on which the Claimant may expect to
receive a decision on his claim. Within 60 days of receipt of the
information described above, a Claimant shall, if further review is desired,
file a written request for reconsideration with the Administrator. So long
as the Claimant's request for review is pending (including such 60-day
period), the Claimant or his duly authorized representative may review
pertinent documents and may submit issues and comments in writing to the
Administrator. A decision shall be made by the Administrator within 60 days
of the filing by the Claimant of the request for reconsideration and shall be
conveyed to the Claimant in writing and shall include specific reasons for
the decision, which specifically reference the pertinent provisions of this
Plan on which the decision is based.
7. Interests Not Transferable.
--------------------------
CLARK shall have the right to withhold from any payment under this Plan all
taxes required to be withheld under the laws of the United States or any
State, county, municipality or other taxing authority. Except as to any
withholding of tax under such laws, the interest of you or your Beneficiary
under this Plan is not subject to the claims of their creditors and may not
be voluntarily or involuntarily sold, transferred, assigned, alienated or
encumbered.
8. Facility of Payment.
-------------------
Any amounts payable hereunder to any person under legal disability or who, in
the judgment of the Administrator, is unable to properly manage his financial
affairs may be paid to the legal representative of such person or may be
applied for the benefit of such person in any manner which the Administrator
may select.
9. Gender and Number.
-----------------
Where the context admits, words in the masculine gender shall include the
feminine gender, the plural shall include the singular, and the singular
shall include the plural.
10. Controlling Law.
---------------
To the extent not superseded by the laws of the United States, the laws of
Indiana shall be controlling in all matters relating to this Plan.
Mr. David D. Hunter Page 5 April 11, 1995
11. Successors.
----------
This Plan is binding on CLARK and will bind and inure to the benefit of any
successor of CLARK, whether by way of purchase, merger, consolidation or
otherwise.
12. Continued Employment.
--------------------
This Plan shall not be construed to give you the right to be retained in the
employment of CLARK, Blaw-Knox, or any of their subsidiaries or affiliates.
13. Qualified Domestic Relations Order.
----------------------------------
In the event your benefit under the Program is subject to a qualified
domestic relations order as defined in Section 414(p) of the Internal Revenue
Code, the benefits provided by this Plan shall be calculated and paid as if
no qualified domestic relations order was in existence.
14. Source of Payments.
------------------
The benefits provided for in this Plan are payable only from the general
assets of CLARK and CLARK is not required to segregate any assets to be used
for the payment of such benefits.
15. Effective Date, Plan Year.
--------------------------
This Plan shall be adopted by CLARK effective as of 1 January 1995 (the
"Effective Date"). The "Plan Year" is the calendar year.
16. Action by CLARK.
---------------
Any action required or permitted to be taken by CLARK under this Plan shall
be by resolution of its Board of Directors (or by the Human Effectiveness
Committee or other duly authorized committee of the Board of Directors) or by
a person or persons authorized by resolution of such Board or committee.
17. No Guarantee of Program Benefits.
--------------------------------
This Plan is intended to pay benefits in addition to, and not in lieu of, any
benefits to which you or your Beneficiary may be entitled under the Program.
If any benefits to which you or your Beneficiary may be entitled under the
Program are not paid for any
Mr. David D. Hunter Page 6 April 11, 1995
reason, including, but not limited to, the lack of sufficient assets of the
Program to pay such benefits, such benefits shall not be paid from this Plan.
If the foregoing is entirely satisfactory to you, please sign and return the
attached copy of this letter whereupon it shall constitute an agreement
between us as of the date first set forth above.
Very truly yours,
CLARK EQUIPMENT COMPANY
Accepted and Agreed to:
By: /s/ Frank M. Sims
---------------------------
/s/ David D. Hunter Frank M. Sims
--------------------------- Senior Vice President
April 11, 1995
Mr. James D. Kertz
2501 Lilac Lane N.E.
Fargo, North Dakota 58102
Dear Mr. Kertz:
Clark Equipment Company (CLARK) wishes to assure itself and its
subsidiaries of your continued services. Accordingly, in
consideration of services to be rendered by you in the future,
the following Agreement is proposed.
1. Change in Control.
-----------------
1.1 If following a change in control of CLARK, as defined
in Section 1.5 hereof, your employment with CLARK terminates
other than for cause (as defined in Section 1.4), you will be
entitled to the benefits provided for in this Section 1. For the
purpose of this Agreement, employment by a wholly-owned
subsidiary of CLARK in the United States shall be deemed to be
employment by CLARK.
1.2 If any time within two years subsequent to a change in
control of CLARK, you terminate your employment with CLARK within
six months after the occurrence of one or more of the following
events: (i) a change in the location of your employment;
(ii) a reduction in the nature and scope of your employment
responsibilities or duties for the Melroe Company Business Unit
of CLARK; or (iii) any reduction in your compensation, benefits
or perquisites, either separately or in the aggregate, such
termination will be treated as a termination by CLARK other than
for cause.
1.3 If after a change in control of CLARK you are
terminated by CLARK other than for cause (as defined in
Section 1.4), CLARK will pay to you, within fifteen (15) days
thereafter, an amount equal to two times the sum of your then
base salary and your target bonus. For the purpose of this
Agreement, "target bonus" means the difference between average
total compensation and average base salary as determined from the
Hay Compensation Report for Industrial Management for the last
year preceding the year in which such termination occurs, for the
number of Hay Client Points of position at the time of such
termination, but in any event for not less than the number of Hay
Client Points of your position on the date of this Agreement.
Mr. James D. Kertz
April 11, 1995
Page 2
1.4 For the purposes of this Section 1, a termination of
your employment by CLARK shall be "other than for cause" if it is
either (i) treated as such pursuant to Section 1.2 hereof or
(ii) for any reason other than wilful misconduct by you that has
substantially prejudiced the interests of CLARK or its
subsidiaries.
1.5 For purposes of this Agreement, the term "change in
control of CLARK" shall mean any of the following events:
(1) the acquisition of beneficial ownership of 25% or
more of the shares of the Common Stock of CLARK by or for any
person (as such term is defined in Section 14(d)(2) of the
Securities Exchange Act of 1934), including for purposes of
calculating such person's ownership, all shares beneficially
owned by the affiliates and associates (as such terms are defined
in Rule 12b-2 of the Securities Exchange Act of 1934) of such
person, provided, however, that the term "person" shall not
include any of the following: CLARK, any subsidiary of CLARK,
any employee benefit plan or employee stock plan of CLARK or of
any subsidiary of CLARK, any dividend reinvestment plan of CLARK,
any person or entity organized, appointed or established by CLARK
for or pursuant to the terms of any such plan, or any person
which becomes the beneficial owner of 25% or more of such shares
then outstanding solely as a result of the acquisition by CLARK
or any employee benefit plan of CLARK of shares of the Common
Stock of CLARK, provided that such person does not thereafter
acquire any shares of the Common Stock of CLARK, or
(2) during any period of 24 consecutive months,
individuals who at the beginning of such period constitute the
Board of Directors of CLARK cease for any reason to constitute a
majority thereof, unless the election, or nomination for election
by CLARK's stockholders, 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 such period, or
(3) CLARK's stockholders shall approve (a) the merger
or consolidation of CLARK with or into another corporation and
CLARK shall not be the surviving corporation, or (b) an agreement
to sell or otherwise dispose of all or substantially all of
CLARK's assets (including a plan of liquidation).
1.6 In the event of a change in control of CLARK, all
subsequent legal and accounting fees and expenses incurred by you
in connection with, or in prosecuting or defending, any dispute
arising out of or relating to this Agreement shall be paid by
CLARK.
2. Governing Law. This Agreement shall be governed by the
-------------
laws of the State of Indiana.
3. Non-Competition. For such time as you are employed by
---------------
CLARK, and thereafter for a period of two years following the
cessation of your employment with CLARK for any reason, you agree
to refrain from competing with CLARK or any of its subsidiaries
in
Mr. James D. Kertz
April 11, 1995
Page 3
the United States or elsewhere in the world with respect to any
aspect of the business conducted by the Melroe Company Business
Unit of CLARK ("Melroe") (collectively "the Business"), including
without limitation, the design, manufacture, sale or distribution
of products which are similar to or competitive with those of
Melroe, or becoming an employee or representative of any person,
firm or company which competes with Melroe or any of its
subsidiaries in the United States or elsewhere in the world with
respect to the Business. If a court shall finally hold that the
time or territory or any other provisions stated in this
Section 3 constitute an unreasonable restriction upon you, the
provisions of this Agreement shall not be rendered void, but
shall instead apply as to time for a period of two years and as
to territory in the continental United States or to such lesser
extent as such court may judicially determine constitutes a
reasonable restriction under the circumstances involved.
4. Confidential Information. During the course of your
------------------------
employment with CLARK and its subsidiaries, you have received,
developed or otherwise become aware of confidential information
of CLARK and its subsidiaries. For a period of five years
following the cessation of your employment with CLARK for any
reason you will not use, disclose, give, sell or otherwise
divulge to any person, firm or corporation any confidential
information regarding CLARK or any of its subsidiaries. The term
"confidential information" shall include but not be limited to
any aspect of CLARK's (or its subsidiaries') business, trade
secrets, strategies, potential acquisitions or divestitures,
discussions relating to acquisitions or divestitures, financial
statements or other financial information, forecasts, operations,
business plans, prices, discounts, products, product
specifications, designs, plans, processes, data and know-how,
ideas, technical information and intellectual property, except
such information as is otherwise made publicly available by CLARK
or its subsidiaries. You will not remove from CLARK's possession
any confidential information, and shall return to CLARK on or
before the termination of your employment any confidential
information which may have previously been in your possession.
The provisions of this Section 4 shall survive any termination of
this Agreement. Any other agreements between CLARK and you
relating to confidentiality shall, to the extent not inconsistent
herewith, remain in effect.
5. Employees. For a period of twenty-four (24) months from
---------
the date of the cessation of your employment with CLARK, you
agree to refrain from suggesting, persuading, or inducing any key
employees of CLARK or its subsidiaries to leave their employ.
Mr. James D. Kertz
April 11, 1995
Page 4
If the foregoing is entirely satisfactory to you, please sign and
return the attached copy of this letter, whereupon it shall
constitute an agreement between us as of the date first set forth
above.
Very truly yours,
CLARK EQUIPMENT COMPANY
By: /s/ Leo J. McKernan
---------------------------
Accepted and Agreed to: Title: Chairman, President and
-------------------------
Chief Executive Officer
-------------------------
/s/ James D. Kertz
-------------------------
4.06.95
April 11, 1995
Mr. John J. Reynolds
166 Pembrooke Ridge Court
Advance, North Carolina 27006
Dear Mr. Reynolds:
Clark Equipment Company (CLARK) wishes to assure itself and its
subsidiaries of your continued services. Accordingly, in
consideration of services to be rendered by you in the future,
the following Agreement is proposed.
1. Change in Control.
-----------------
1.1 If following a change in control of CLARK, as defined
in Section 1.5 hereof, your employment with CLARK terminates
other than for cause (as defined in Section 1.4), you will be
entitled to the benefits provided for in this Section 1. For the
purpose of this Agreement, employment by a wholly-owned
subsidiary of CLARK in the United States shall be deemed to be
employment by CLARK.
1.2 If any time within two years subsequent to a change in
control of CLARK, you terminate your employment with CLARK within
six months after the occurrence of one or more of the following
events: (i) a change in the location of your employment;
(ii) a reduction in the nature and scope of your employment
responsibilities or duties for the Clark-Hurth Business Unit of
CLARK; or (iii) any reduction in your compensation, benefits or
perquisites, either separately or in the aggregate, such
termination will be treated as a termination by CLARK other than
for cause.
1.3 If after a change in control of CLARK you are
terminated by CLARK other than for cause (as defined in
Section 1.4), CLARK will pay to you, within fifteen (15) days
thereafter, an amount equal to two times the sum of your then
base salary and your target bonus. For the purpose of this
Agreement, "target bonus" means the difference between average
total compensation and average base salary as determined from the
Hay Compensation Report for Industrial Management for the last
year preceding the year in which such termination occurs, for the
number of Hay Client Points of your position at the time of such
termination, but in any event for not less than the number of Hay
Client Points of your position on the date of this Agreement. In
addition, CLARK will continue to provide health care benefits to
you and your dependents of the type and in the amounts in effect
immediately prior to any termination
Mr. John J. Reynolds
April 11, 1995
Page 2
by CLARK other than for cause and life insurance coverage to you
in the amount of two times your salary, in each case until the
second anniversary of the date of such termination. If, at the
end of such two year period you have not yet attained age 65, you
shall be entitled to continue such health care and life insurance
coverages, by paying to CLARK the full amount of their costs,
until you attain age 65. Upon your attainment of age 65
(regardless of whether you continued such coverages by paying
their cost until then), CLARK will provide you with the group
life and health care benefits, and under the same terms, that
such benefits would have been provided to you under the CLARK
FlexPlan as in effect immediately prior to the change in control
of CLARK if you had retired from employment with CLARK at age 65
and with ten years of service on that date.
1.4 For the purposes of this Section 1, a termination of
your employment by CLARK shall be "other than for cause" if it is
either (i) treated as such pursuant to Section 1.2 hereof or
(ii) for any reason other than wilful misconduct by you that has
substantially prejudiced the interests of CLARK or its
subsidiaries.
1.5 For purposes of this Agreement, the term "change in
control of CLARK" shall mean any of the following events:
(1) the acquisition of beneficial ownership of 25% or
more of the shares of the Common Stock of CLARK by or for any
person (as such term is defined in Section 14(d)(2) of the
Securities Exchange Act of 1934), including for purposes of
calculating such person's ownership, all shares beneficially
owned by the affiliates and associates (as such terms are defined
in Rule 12b-2 of the Securities Exchange Act of 1934) of such
person, provided, however, that the term "person" shall not
include any of the following: CLARK, any subsidiary of CLARK,
any employee benefit plan or employee stock plan of CLARK or of
any subsidiary of CLARK, any dividend reinvestment plan of CLARK,
any person or entity organized, appointed or established by CLARK
for or pursuant to the terms of any such plan, or any person
which becomes the beneficial owner of 25% or more of such shares
then outstanding solely as a result of the acquisition by CLARK
or any employee benefit plan of CLARK of shares of the Common
Stock of CLARK, provided that such person does not thereafter
acquire any shares of the Common Stock of CLARK, or
(2) during any period of 24 consecutive months,
individuals who at the beginning of such period constitute the
Board of Directors of CLARK cease for any reason to constitute a
majority thereof, unless the election, or nomination for election
by CLARK's stockholders, 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 such period, or
(3) CLARK's stockholders shall approve (a) the merger
or consolidation of CLARK with or into another corporation and
CLARK shall not be
Mr. John J. Reynolds
April 11, 1995
Page 3
the surviving corporation, or (b) an agreement to sell or
otherwise dispose of all or substantially all of CLARK's assets
(including a plan of liquidation).
1.6 In the event of a change in control of CLARK, all
subsequent legal and accounting fees and expenses incurred by you
in connection with, or in prosecuting or defending, any dispute
arising out of or relating to this Agreement shall be paid by
CLARK.
2. Governing Law. This Agreement shall be governed by the
-------------
laws of the State of Indiana.
3. Non-Competition. For such time as you are employed by
---------------
CLARK, and thereafter for a period of two years following the
cessation of your employment with CLARK for any reason, you agree
to refrain from competing with CLARK or any of its subsidiaries
in the United States or elsewhere in the world with respect to
any aspect of the business conducted by the Clark-Hurth Business
Unit of CLARK ("Clark-Hurth") (collectively "the Business"),
including without limitation, the design, manufacture, sale or
distribution of products which are similar to or competitive with
those of Clark-Hurth, or becoming an employee or representative
of any person, firm or company which competes with Clark-Hurth or
any of its subsidiaries in the United States or elsewhere in the
world with respect to the Business. If a court shall finally
hold that the time or territory or any other provisions stated in
this Section 3 constitute an unreasonable restriction upon you,
the provisions of this Agreement shall not be rendered void, but
shall instead apply as to time for a period of two years and as
to territory in the continental United States or to such lesser
extent as such court may judicially determine constitutes a
reasonable restriction under the circumstances involved.
4. Confidential Information. During the course of your
------------------------
employment with CLARK and its subsidiaries, you have received,
developed or otherwise become aware of confidential information
of CLARK and its subsidiaries. For a period of five years
following the cessation of your employment with CLARK for any
reason you will not use, disclose, give, sell or otherwise
divulge to any person, firm or corporation any confidential
information regarding CLARK or any of its subsidiaries. The term
"confidential information" shall include but not be limited to
any aspect of CLARK's (or its subsidiaries') business, trade
secrets, strategies, potential acquisitions or divestitures,
discussions relating to acquisitions or divestitures, financial
statements or other financial
Mr. John J. Reynolds
April 11, 1995
Page 4
information, forecasts, operations, business plans, prices,
discounts, products, product specifications, designs, plans,
processes, data and know-how, ideas, technical information and
intellectual property, except such information as is otherwise
made publicly available by CLARK or its subsidiaries. You will
not remove from CLARK's possession any confidential information,
and shall return to CLARK on or before the termination of your
employment any confidential information which may have previously
been in your possession. The provisions of this Section 4 shall
survive any termination of this Agreement. Any other agreements
between CLARK and you relating to confidentiality shall, to the
extent not inconsistent herewith, remain in effect.
5. Employees. For a period of twenty-four (24) months from
---------
the date of the cessation of your employment with CLARK, you
agree to refrain from suggesting, persuading, or inducing any key
employees of CLARK or its subsidiaries to leave their employ.
If the foregoing is entirely satisfactory to you, please sign and
return the attached copy of this letter, whereupon it shall
constitute an agreement between us as of the date first set forth
above.
Very truly yours,
CLARK EQUIPMENT COMPANY
By: /s/ Leo J. McKernan
---------------------------
Title: Chairman, President and
-------------------------
Chief Executive Officer
-------------------------
Accepted and Agreed to:
/s/ John J. Reynolds
------------------------
4.06.95