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Exhibit 10.1
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. Title;
Duties .
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 Cause or for G
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