FIRST AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
FIRST
AMENDED AND RESTATED EMPLOYMENT AGREEMENT effective as of the 1
st day of January, 2008 (“Agreement”) by and
between OSHKOSH CORPORATION, a Wisconsin corporation (the
“Company”), and CHARLES L. SZEWS (the
“Executive”).
WITNESSETH:
WHEREAS,
the Executive and the Company executed an initial Employment
Agreement as of March 20, 2007 (“Original Agreement”)
and the parties hereto desire to amend and restate the Original
Agreement to read in its entirety as set forth in this
Agreement;
WHEREAS,
the Executive has been serving as Executive Vice President and
Chief Financial Officer of the Company; and the Company desires to
continue to retain the services of the Executive, and the Executive
desires to continue to be employed by the Company, on the terms and
conditions set forth in this Agreement; and
WHEREAS,
in consideration of the Company’s commitments in this
Agreement, the Executive has entered into a Confidentiality and
Loyalty Agreement with the Company (the “Loyalty
Agreement”).
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
1.
Employment and Duties . Subject to the terms and conditions
of this Agreement, the Company will continue to employ the
Executive, and the Executive will continue to be employed by the
Company, as the Executive Vice President and Chief Financial
Officer of the Company. As such officer, he shall have the
authority and duties set forth for his offices in the
Company’s bylaws, shall have such additional duties as are
normally assigned to a chief financial officer, shall perform his
duties in a conscientious, reasonable and competent manner, shall
devote his best efforts to his employment by the Company and,
except as otherwise set forth herein, shall devote his entire
business time and attention to the performance of his duties. At
all times, the Executive shall be subject to the direction of the
Board of Directors and the Chief Executive Officer
(“CEO”) of the Company. It shall not be a violation of
this Agreement for the Executive to (a) serve on corporate, civic
or charitable boards or committees and (b) manage personal
investments, so long as such activities do not significantly
interfere with the performance of the Executive’s
responsibilities as an employee of the Company in accordance with
this Agreement and, in the case of corporate boards or committees,
so long as the Executive receives the prior consent of the
CEO.
2.
Term . The employment of the Executive under this Agreement
will continue until the occurrence of the first of the following
events:
(a)
December 31, 2008, subject to extension as described
below;
(b)
The Executive’s death;
(c)
The Executive shall have become totally disabled within the meaning
of the Oshkosh Corporation Long Term Disability Program for
Salaried Employees (the “LTD Program”) such that the
Executive is entitled to receive benefits under the LTD Program;
or
(d)
Termination of this Agreement under Section 6.
The provisions of Sections 7 and
10 and the Loyalty Agreement shall survive the expiration of the
term of this Agreement.
The
last date on which the Executive’s employment under this
Agreement may terminate pursuant to subsection (a) shall be
automatically extended at successive one-year intervals on the date
12 months prior to the date on which the Executive’s
employment under this Agreement would otherwise terminate (the
“Extension Date”) unless not less than 30 days prior to
the Extension Date the Company or the Executive has provided a
written notice of nonrenewal (a “Nonrenewal Notice”) to
the other party. If a party gives a timely Nonrenewal Notice, then
the Executive’s employment under this Agreement shall
terminate in accordance with the provisions of this Section (as
subsection (a) may have been previously extended by the parties),
and neither party shall have any other rights or obligations as a
result of the delivery of such notice. However, this Agreement will
not be extended automatically (x) beyond the date on which the
Executive would attain age 62 or (y) if the Executive is disabled
at the time such extension would otherwise automatically become
effective.
3.
Compensation . The Executive shall be entitled to the
following compensation for services rendered to the Company during
the term of this Agreement:
(a)
Base Salary . Subject to adjustment in accordance with this
subsection (a), the Executive shall receive a base salary at the
annual rate of not less than $665,000. The Human Resources
Committee of the Board of Directors of the Company (the
“Committee”) shall review the Executive’s base
salary annually to determine whether such salary should be
increased. (In this Agreement, the term “Base Salary”
shall mean the amount established and adjusted from time to time
pursuant to this subsection (a).)
(b)
Other Compensation . The Executive shall be entitled to
participate in the bonus plan, qualified retirement plan,
supplemental retirement plan, stock-based compensation programs,
deferred compensation plan and fringe benefit plans and programs
(including without limitation the LTD Program), and receive
perquisites, in each case in effect from time to time for other
senior executives of the Company, subject to all of the terms and
conditions of the respective plans and programs and the discretion
and powers of the Committee thereunder.
(c)
Vacations and Holidays . The Executive shall be entitled to
receive 20 days of paid vacation per year together with the paid
holidays available to all other senior management personnel. Unused
vacation and holidays shall not accrue from year to year, except as
may be approved by the CEO.
4.
Reimbursements . The Company shall reimburse the Executive
for actual out-of-pocket costs he incurs in the course of carrying
out his duties, in accordance with Company policies and procedures
in effect from time to time. The Executive shall also be entitled
to reimbursement for all reasonable fees and expenses of the
Executive’s legal counsel in connection with the negotiation
and preparation of this Agreement.
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5.
Withholding . All payments under this Agreement shall be
subject to withholding or deduction by reason of the Federal
Insurance Contributions Act, the federal income tax and state or
local income tax and similar laws, to the extent such laws apply to
such payments.
6.
Termination .
(a)
By the Company for Cause . The Company may terminate this
Agreement for Cause at any time. For the purposes of this
Agreement, “Cause” shall mean any of the following: (i)
theft, dishonesty, fraudulent misconduct, unauthorized disclosure
of trade secrets, gross dereliction of duty or other grave
misconduct on the part of the Executive that is substantially
injurious to the Company; (ii) the Executive’s willful act or
omission that he knew would have the effect of materially injuring
the reputation, business or prospects of the Company; (iii) the
Executive’s conviction of a felony, as evidenced by a binding
and final judgment, order or decree of a court of competent
jurisdiction; (iv) the Executive’s consent to an order of the
Securities and Exchange Commission for the Executive’s
violation of the federal securities laws; (v) the Executive’s
repeated and demonstrated failure to perform material duties in a
competent and efficient manner which failure is not due to illness
or disability of the Executive; (vi) a petition under the federal
bankruptcy laws or any state insolvency law was filed by or
against, or a receiver was appointed by a court for the property
of, the Executive; (vii) the Executive’s failure to file
timely (including extensions) federal or state income tax returns
that the Executive or his spouse is required by law to file (such
as personal returns and returns for trusts or entities of which the
Executive or his spouse is trustee, controlling or general partner
or member, or managing member) and to pay related taxes; (viii) the
occurrence of improprieties involving the financial
state
