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EXHIBIT 10.05
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made this 13th day of October, 1995, by and between THE
GRADALL COMPANY, an Ohio corporation (the "Company"), and DAVID S. WILLIAMS
("Executive").
WITNESSETH THAT:
WHEREAS, Executive has been employed by the Company as its Vice President
of Marketing and Sales pursuant to the terms of an employment agreement by and
between the Company and the Executive dated January 13, 1986, as amended by
agreements dated July 17, 1989 and February 5, 1993 (the "Prior Employment
Agreement");
WHEREAS, the Company and the Executive desire to amend and restate the
Prior Employment Agreement to provide for the continued employment of the
Executive upon the terms and conditions hereinafter set forth; and
WHEREAS, the Executive's services are of great value to the Company and it
is recognized that substantial inducement must be offered to the Executive in
order that the Company may retain his services.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties agree as follows:
1. DUTIES. The Company hereby agrees to continue to employ the Executive as
Vice President of Marketing and Sales of the Company, and the Executive hereby
agrees to continue to serve the Company in that capacity in accordance with the
terms and conditions set forth herein:
a. The Executive shall be vested with all powers and rights
attendant to the office of Vice President or Marketing and Sales,
and shall have full authority and responsibility, subject to the
general direction, approval and control of
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the Board of Directors and the President of the Company, to
formulate policies and administer the Company in all respects
relative to the sales and marketing of the Company's products.
b. If elected or appointed by the Board of Directors, the Executive
shall serve as a director of the Company without additional
compensation.
c. During the term of this Agreement, the Executive shall devote all
of his business time, attention, energy and skill to the
performance of the duties and services described herein, and
shall not engage directly or indirectly in any other business
activity, whether or not such business activity is pursued for
gain, profit or other pecuniary advantage, except with the
written consent of the Company's Board of Directors, provided,
that the provisions of this Section 1(c) shall not restrict the
Executive's investment of his personal assets or the Executive's
participation in any professional, academic or civic activity.
2. TERM. Subject to prior termination as set forth in Section 11 hereof,
the term of this Agreement shall be for a period of one year, beginning on the
date hereof, which term shall be automatically renewed for successive one year
periods until terminated as set forth in Section 11 hereof.
3. COMPENSATION. The Company shall pay to the Executive as compensation for
his services hereunder a base salary of One Hundred and Forty Thousand Dollars
($140,000) per year, payable in equal semi-monthly installments, subject to
withholding and other applicable taxes. The salary provided herein shall be
subject to adjustment based on annual reviews conducted by the Company.
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4. INCENTIVE COMPENSATION. The Executive shall be entitled to participate
in any incentive compensation plans established by the Company from time to
time.
5. EXPENSES. The Executive is authorized to incur reasonable expenses in
connection with the business of the Company and the performance of his duties
hereunder, including expenses for entertainment, travel and similar items. The
Company will pay or reimburse the Executive for all expenses upon the
presentation by the Executive of an itemized account of such expenditures and
any other documentation or substantiation of expenses which may be required for
compliance with applicable state and federal tax laws.
6. VACATIONS. The Executive shall be entitled to four (4) weeks of vacation
each year, during which time his compensation shall be paid in full.
7. AUTOMOBILE EXPENSES. During the term of this Agreement, the Company
shall reimburse the Executive for all expenses incurred in connection with the
maintenance of an automobile for the Executive's business use including, but not
limited to, acquisition costs, fuel, maintenance and insurance, upon the
submission to the Company of an itemized account of such expenditures and any
other documentation or substantiation of expenses which may be required for
compliance with applicable state and federal tax laws. The Company shall pay to
the Executive such additional amount as may be necessary to reimburse the
Executive for any federal state or local income taxes the Executive is required
to pay as a result of the Company's payments pursuant to this Section 7,
including such tax reimbursement payments.
8. EXECUTIVE BENEFITS. The Executive shall be entitled to all benefits
offered by the Company to any of its executive or salaried employees including,
but not limited to, major medical health insurance, hospitalization insurance,
life insurance, travel and accident insurance, and disability insurance,
including, but not limited to, those benefits the Executive currently receives
from the Company.
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9. DISABILITY. If the Executive is unable to perform his duties by reason
of illness or incapacity, the Executive shall be entitled to receive all
benefits provided under the Company's standard disability program and shall be
entitled to receive all benefits theretofore received by the Executive.
10. DEFERRAL OF COMPENSATION. The Executive shall be entitled to
participate in the Company's Supplemental Executive Retirement Plan and any
other deferred compensation program maintained by the Company.
11. TERMINATION. This Agreement may be terminated in accordance with the
following terms and conditions:
a. The Company may terminate this Agreement at any time, without
cause, upon ninety (90) days written notice to Executive.
However, in such event, the Company shall pay or provide to the
Executive
i. a severance allowance of at least twelve (12) months pay at
the Executive's then current rate of pay (less all amounts
required to be withheld and deducted), payable on a monthly
basis, starting on the last day of the first full month
following termination;
ii. all amounts the Executive would have received under the
Short and Long Term Management Incentive Plans (less all
amounts required to be withheld and deducted) during the
twelve (12) month period following the effective date of
such termination; and
iii. benefits equivalent to those previously received by the
Executive including, but not limited to, benefits provided
under Sections 7 and 8 of this Agreement, for the twelve
(12) month period following the effective date of such
termination.
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Notwithstanding the above, if the Company terminates this
Agreement prior to November 1, 1997, the severance period
provided for above shall in each case be increased to twenty-four
(24) months.
b. The Company may terminate this Agreement upon such notice as the
Directors regard as suitable, conditional upon payment of the
severance allowance set forth in Section 11(a) hereof, under the
following circumstances:
i. the sale by the Company of substantially all of its assets
to a single purchaser or to a group of associated
purchasers;
ii. the acquisition by any person, including a "group" as
defined in Section 13(d)(3) of the Securities Exchange Act
of 1934 (other than the shareholders of the Company as of
the date hereof) of beneficial ownership of capital stock of
the Company representing fifty-one percent (51%) or more of
the voting power of all outstanding capital stock of the
Company;
iii. a decision by the Company to terminate its business and
liquidate its assets;
iv. the merger or consolidation of the Company in a transaction
in which the shareholders of the Company immediately prior
to such merger or consolidation fail to hold at least
fifty-one percent (51%) of the outstanding voting shares of
the new or continuing corporation; or
v. any damage to the Company's factory, as a result of which
the Company is unable to conduct the ordinary course of its
business thereafter for a period of 120 consecutive days.
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c. The Company may terminate this Agreement upon ninety (90) days
notice to the Executive, in the event that the Executive has been
unable to perform his duties by reason of illness or incapacity,
which inability continues for a consecutive twelve month period.
d. Notwithstanding anything herein to the contrary, the Company
shall have the right to terminate this Agreement, effective upon
written notice of such termination, and shall not have an
obligation to pay any amounts provided under Section 11(a) hereof
upon the happening of any of the following events:
i. the violation by the Executive of the restrictive covenants
set forth in Sections 12 and 13 hereof, as determined by a
court of competent jurisdiction;
ii. the commission by the Executive of a material theft or
embezzlement of Company property;
iii. the conviction of the Executive for a crime resulting in
injury to the business or property of the Company; or
iv. the commission of any act by the Executive in the
performance of his duties hereunder adjudged by a court of
competent jurisdiction to amount to gross, willful or wanton
negligence.
e. The Executive may terminate this Agreement upon ninety (90) days
written notice to the Company. Upon the effective date of such
termination, the Company shall have no further obligation to pay
any amounts provided for in this Agreement, except as set forth
in Section 11(f) hereof.
f. In the event of termination pursuant to Sections 11(a), 11(b),
11(c) 11(d) or 11(e) hereof, the Executive shall receive the
entire balance of any sums
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earned by him prior to termination and such other benefits which
may be due him including, but not limited to, a prorata portion
of amounts earned by the Executive under any incentive
compensation plans maintained by the Company.
g. Upon termination of this Agreement, for any reason, the Executive
shall promptly surrender to the Company all property provided him
by the Company for use in relation to his employment, and, in
addition, the Executive shall surrender to the Company any and
all documents, files, records or other material and information
of or pertaining to the Company or its business operations.
12. NON-COMPETITION. During the period of his employment with the Company
and for a period of six months thereafter, the Executive covenants and agrees
that he shall not do any of the following:
a. Own, manage, operate, join, control, be employed by, participate
in, or be connected in any manner with the ownership, management,
operation, or control of any business that is competitive with
the types of businesses conducted by the Company at that time
within any areas in which the Company conducts business or within
any geographic areas in which the Company intends to conduct
business, as known to Executive by reason of Executive's
affiliation with the Company. Nothing herein shall prohibit
Executive from owning stock or other securities of a competitor,
provided that Executive's equity interest shall not exceed five
percent (5%) of the total outstanding stock of such competitor,
and provided Executive, in fact, does not have the power to
control or direct the management or policies of such
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competitor and does not serve as a director or officer thereof,
and is not otherwise associated with any competitor, except as
consented to by the Company.
b. Induce or influence any employee, independent contractor, agent,
customer or supplier of the Company to terminate or curtail his,
her or its employment or business relationship with the Company.
c. Solicit or sell any product or service which is competitive with
those offered by the Company to any customer which did business
with the Company at any time during the term of Executive's
employment with the Company.
13. CONFIDENTIALITY. During the period of his employment by the Company and
for a period of six (6) months following its termination, for any reason, the
Executive covenants and agrees that he shall not use, disseminate, or disclose,
for his own benefit, or for the benefit of any person, firm, business, or other
entity, any confidential information pertaining to the Company, unless such
information is first made public by the Company; the Company authorizes, in
writing, the use, dissemination, or disclosure of such information; or as
otherwise required by law. For purposes of this subparagraph, confidential
information is information which is not generally known to the Company's
industry, and relates, by way of example and not by way of limitation, to the
Company's manufacturing process, cost and pricing data, supply sources,
contracts, and customer lists.
14. NOTICES. Any notice required or desired to be given pursuant to this
Agreement shall be in writing and sent by certified mail to the parties at the
following addresses, or to such other addresses as either may designate in
writing to the other party:
To the Company: International Consulting Management, Ltd.
303 East Wacker Drive, Suite 1112
Chicago, IL 60601
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To Executive: David S. Williams
5601 Foxchase N.W.
Canton, Ohio 44718
15. WAIVER. Failure to insist upon strict compliance with any of the terms,
covenants, or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition, nor shall any waiver or relinquishment of any right or
power hereunder at any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times.
16. SEVERABILITY. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision. In the event that any part of a covenant contained herein is
determined by a court of law to be invalid, a judicially enforceable provision
shall be substituted in its place. Any covenant so modified shall be binding
upon the parties and shall have the same force and effect as if originally set
forth in this Agreement.
17. MODIFICATION. This Agreement may be amended only in writing, signed by
both parties hereto.
18. HEADINGS. The headings in this Agreement are inserted for convenience
only and are not to be considered a construction of the provisions thereof.
19. ASSIGNMENT. The Executive acknowledges that the services to be rendered
by him are unique and personal. Accordingly, the Executive may not assign any of
his rights or delegate any of his duties or obligations under this Agreement.
However, the rights and obligations of the Company under this Agreement shall
inure to the benefit of and shall be binding upon the successors and assigns of
the Company including, but not limited to, any corporation which may acquire all
or substantially all of the Company's assets and business, or which may be
consolidated or merged with or into the Company.
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20. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Ohio.
21. NOVATION. This Agreement terminates and supersedes the Prior Employment
Agreement.
22. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
and agreement between the Company and the Executive with regard to all matters
herein. There are no other agreements, conditions or representations, oral or
written, express or implied, with regard thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
THE GRADALL COMPANY
/s/ Barry L. Phillips
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/s/ David S. Williams
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David S. Williams
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