EXECUTIVE DIRECTOR
AGREEMENT
This Executive
Director Agreement (the “Agreement”), made this
1 st
day of January, 2007, is entered
into by Wabash National Corporation (the “Company”) and
William Greubel (the “Executive”).
WHEREAS, the
Executive was employed by the Company as its Chief Executive
Officer pursuant to an Executive Employment Agreement (the
“Employment Agreement”) dated April 12,
2002.
WHEREAS, the
Executive, at his own desire, ceased serving as the Company’s
Chief Executive Officer effective December 31,
2006.
WHEREAS, subject
to the terms and conditions in this Agreement, the Company desires
to continue to employ the Executive but in the capacity as its
Executive Director, and the Executive desires to be employed by the
Company in such capacity.
NOW, THEREFORE, in
consideration of the mutual covenants and promises contained in
this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the parties,
the parties agree as follows.
1.
Term of Employment . The Company agrees to employ the
Executive, and the Executive accepts employment with the Company,
upon the terms set forth in this Agreement, for the period
commencing on January 1, 2007 and ending on January 1,
2009, unless sooner terminated in accordance with the provisions of
Sections 5.2. through 5.5 (the “Employment
Period”).
2.
Employment Agreement . Effective on December 31,
2006, the Employment Agreement and the obligations and provisions
therein shall no longer apply to the Company or the Executive, are
no longer binding on the Company or the Executive, and shall have
no further force or effect. The Company and the Executive agree
that neither the Executive’s relinquishment of the office of
Chief Executive Officer, the Executive’s assumption of the
position of Executive Director, any related change in the
Executive’s duties or responsibilities, nor any other action
on the part of the Company on or prior to December 31, 2006 is
grounds for the Executive to terminate his employment for Good
Reason pursuant to Section 4.3. of the Employment Agreement or
is grounds for the Company to terminate his employment for Cause
pursuant to Section 4.2. of the Employment
Agreement.
3.1.
Title . The Executive shall serve as Executive Director of
the Company and shall be subject to the supervision of, and shall
have such authority as is delegated to him by, the Company’s
Board of Directors (the “Board”) and the Chief
Executive Officer.
3.2.
Board Membership . The Company shall use commercially
reasonable efforts to cause the Executive to be nominated for
election to the Board at the 2007
and 2008 Annual
Meetings of Stockholders if the Executive is deemed qualified to
serve by the Nominating Committee. In assessing the
Executive’s qualification to serve, the Nominating Committee
shall apply the same criteria to the Executive as it does to all
other nominees for the Board, including using the criteria set
forth in Section IV. of the Company’s Corporate
Guidelines (Selection of Directors Nominations and
Appointments).
3.3.
Duties . The Executive’s duties shall include such
duties as may be reasonably assigned to him by the Board or the
Chief Executive Officer and which are consistent with the position
of Executive Director. The Company and the Executive agree that
examples of such duties currently include: being a mentor and
counsel to the Chief Executive Officer, representing the Company at
key events, strategic planning, assisting the Senior Vice President
Sales and Chief Executive Officer in current and new account
development, and assisting the Vice President Supply Chain in
development of alternative sourcing. The Executive agrees to
undertake and faithfully perform the duties and responsibilities
inherent in his position and as may be otherwise assigned to him
consistent with this Agreement. Excepting periods of vacation,
illness or disability and excepting such time as the Executive may
reasonably require for personal matters and affairs, the Executive
agrees to devote a reasonable amount of his business time,
attention and energies to the business and interests of the
Company. The Executive shall not engage in full-time employment
with any other entity or engage in any activities which will
interfere with the performance of his duties with the Company or
which knowingly present a conflict of interest. During the
Executive’s employment with the Company, the Executive may
serve on the boards of directors of other entities and may pursue
passive investments; provided that such activities do
not unreasonably interfere with his duties and responsibilities
hereunder or create a conflict of interest with the Company; and
further provided that , with respect to
serving on the boards of directors of entities other than
charitable organizations and not-for-profit corporations, the
Executive obtains written consent from the Company, such consent
not to be unreasonably withheld.
4.
Compensation and Benefits .
4.1
Salary . The Company shall pay the Executive, in
semi-monthly installments, an annual base salary of not less than
two hundred and eighty thousand dollars ($280,000) (the “Base
Salary”) during the Employment Period. All payments hereunder
shall be less deductions and withholdings as required by federal,
state, or local law.
4.2.
Bonus Compensation . The Executive shall be eligible for an
annual incentive bonus (“Bonus”), which is targeted at
forty percent (40%) of his Base Salary and which may range from
zero percent (0%) to eighty percent (80%) of his Base Salary. The
amount of any Bonus shall be at the sole discretion of the Company,
which shall make its determination based on the Company’s
performance and the Executive’s performance. Any Bonus
payment hereunder shall be less deductions and withholdings as
required by federal, state, or local law, and shall be paid no
later than sixty (60) days after the end of the applicable
fiscal year.
4.3
Fringe Benefits . The Executive shall be entitled to
participate in the fringe benefit programs established by the
Company according to the terms and conditions of those programs and
to the extent those programs are generally applicable to other
executives of
the Company.
The Executive shall be entitled to four (4) weeks of vacation
each year. In addition to and notwithstanding the foregoing, the
Company shall continue to pay to the Executive during the
Employment Period an additional sum (which the Company and the
Executive currently estimate to be approximately Thirty Eight
Thousand Nine Hundred Thirteen dollars and Eight cents ($38,913.08)
annually) to enable the Executive to continue the executive life
insurance program which he has received during his employment with
the Company. If, during the course of the Executive’s
employment with the Company, the Company institutes a new
retirement plan with benefits that are superior to the benefits
under the existing retirement plan of the Company or under this
Agreement and such benefits are generally available to all
executive officers of the Company, then the Executive shall be
eligible to participate in such new retirement plan.
4.4
Reimbursement of Expenses . The Company shall reimburse the
Executive for all reasonable business expenses paid or incurred by
the Executive in connection with the performance of his duties and
responsibilities under this Agreement, upon presentation by the
Executive of documentation, expense statements, vouchers and/or
such other supporting information as the Company may reasonably
request. Upon presentation of appropriate documentation, the
Company agrees to promptly pay for or reimburse the Executive for
his attorneys’ fees incurred in connection with reaching this
Agreement, up to Four Thousand dollars and Zero cents
($4,000.00)
4.5
Residual Compensation . All compensation due under the terms
of this Agreement, but not yet paid, shall be paid to Executive
notwithstanding the expiration of the term of the
Agreement.
5.
Employment Termination . The employment of the
Executive by the Company shall terminate upon the occurrence of any
of the following:
5.1.
Expiration of the two (2) year term set forth in
Section 1.
5.2.
At the election of the Company, for Cause, upon written notice by
the Company to the Executive. For purposes of this
Section 5.2., Cause for termination shall be deemed to exist
upon: (a) the Executive’s willful and continued failure
to perform his principal duties (other than any such failure
resulting from vacation, leave of absence, or incapacity due to
injury, accident, illness, or physical or mental incapacity) as
reasonably determined by the Board in good faith after the
Executive has been given written, dated notice by the Board
specifying in reasonable detail his failure to perform and
specifying a reasonable period of time, but in any event not less
than twenty (20) business days, to correct the problems set
forth in the notice; (b) the Executive’s chronic
alcoholism or addiction to non-medically prescribed drugs;
(c) the Executive’s theft or embezzlement of the
Company’s money, equipment, or securities; (d) the
conviction of the Executive of, or the entry of a pleading of
guilty or nolo contendere by the Executive to, any felony or
misdemeanor involving moral turpitude or dishonesty; (e) a
material breach of this Agreement by the Executive, and the failure
of the Executive to cure such breach within ten (10) business days
of written notice thereof specifying the breach; or (f) any
breach by the Executive of his obligations in Sections 7 or 8
of this Agreement. In no event shall the failure to achieve the
goals set forth in accordance with Section 4.2. of this
Agreement be in and of itself Cause for termination, but such
failure may be considered as part of his overall
performance. No
act or omission on the part of the Executive shall be considered
“willful” unless it is done by the Executive in bad
faith or without reasonable belief that the Executive’s
action was in the best interests of the Company. Any act or
omission based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the advice of counsel for the
Company shall be conclusively deemed to be done by the Executive in
good faith and in the best interests of the Company.
5.3.
At the election of the Executive, for Good Reason, upon written
notice by the Executive to the Company. For purposes of this
Section 5.3., Good Reason for termination shall be deemed to
exist upon: (a) a material breach of this Agreement by the
Company, and the failure of the Company to cure such breach within
twenty (20) business days of written notice thereof specifying
the breach; or (b) discontinuance of the active operation of
business of the Company, or insolvency of the Company, or the
filing by or against the Company of a petition in bankruptcy or for
reorganization or restructuring pursuant to applicable insolvency
or bankruptcy law.
5.4.
Upon the death or disability of the Executive. For purposes of this
Section 5.4., the Executive shall be deemed to have a
disability where: (a) the Executive has been unable, by reason
of illness or injury and with or without a reasonable
accommodation, to perform his normal duties on behalf of the
Company for a period of 180 days, whether or not consecutive,
within the preceding 360-day period; or (b) the receipt by the
Executive of disability benefits for permanent and total disability
under any long-term disability income policy held by or on behalf
of the Executive.
5.5.
At the election of the Company, without Cause, upon thirty
(30) days’ written notice by the Company to the
Executive, or at the election of the Executive, without Good
Reason, upon thirty (30) days’ written notice by the
Executive to the Company, subject to the provisions of Section 6.4.
below
6.
Effect of Termination .
6.1.
Termination for Cause or without Good Reason . If the
Executive’s employment is terminated for Cause (as defined in
Section 5.2.) or if the Executive terminates his employment
without Good Reason (as defined in Section 5.3.), the Company
shall pay to the Executive the compensation and benefits otherwise
payable to him under Section 4 through the last day of his
actual employment by the Company. However, the Executive shall not
be entitled to any Bonus payment for the fiscal year in which his
employment with the Company is terminated for Cause or he
terminates his employment with the Company without Good
Reason.
6.2.
Termination because of Expiration of Term . If the
Executive’s employment ends because of the expiration of the
two (2) year term set forth in Section 1, the Company
shall pay to the Executive the compensation and benefits otherwise
payable to him under Section 4 through the last day of his
actual employment by the Company. However, the Executive shall not
be entitled to any Bonus payment for the 2009 fiscal
year.
6.3.
Termination for Death or Disability . If the
Executive’s employment is terminated by death or because of
disability pursuant to Section 5.4., the
Company shall
pay to the estate of the Executive or to the Executive, as the case
may be, the compensation and benefits which would otherwise be
payable to him under Section 4 up to the date the termination
of his employment occurs. However, the Executive’s Bonus,
assuming the attainment of the goals set forth in Section 4.2.
of this Agreement, for the fiscal year in which termination occurs
because of death or disability will be pro-rated based on his
length of service with the Company in that year. For example, if
the Executive terminates because of disability six months into the
fiscal year, his Bonus, if any, would be fifty percent of the
regular Bonus for that year.
6.4.
Termination without Caus
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