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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is dated as of August 1, 2000, by and among GEEG
Holdings, L.L.C., a Delaware limited liability company ("Holdings"), Xxxxxx
Manufacturing, L.L.C., a Delaware limited liability company (the "Company"), and
Xxxxx X. Xxxxxx (the "Executive"). Capitalized terms used but not otherwise
defined herein shall have the meaning assigned to such terms in Section 1.
WHEREAS, Holdings, directly or indirectly, owns all of the issued and
outstanding membership interests of the Company;
WHEREAS, Holdings, SMC Power Holdings LLC, GEEG Acquisition Holdings
Corp., and GEEG Acquisition, L.L.C. entered into an Agreement and Plan of
Merger (the "Merger Agreement") dated July 14, 2000, whereby GEEG
Acquisition, L.L.C. will be merged with and into Holdings (the "Merger");
WHEREAS, Holdings, the Company and the Executive desire to enter into an
agreement regarding the employment by the Company of the Executive effective as
of the Closing Date of the Merger (as defined in the Merger Agreement) which
agreement shall supersede the Executive's current Employment Agreement, dated
June 8, 1998, between Holdings, the Company and the Executive (the "Old
Employment Agreement") and the other agreements described herein;
WHEREAS, the Executive is entrusted with knowledge of the Company's
particular business methods and is trained and instructed in the Company's
particular operation methods and the relationship between the Company and the
Executive is one in which the Company places special trust and confidence in the
Executive; and
WHEREAS, as of the date hereof, the Executive has entered into a
Repurchase Agreement (the "Repurchase Agreement") pursuant to which Holdings has
issued to the Executive a number of Holdings' Preferred Units and Class A Common
Units (collectively, the "Purchased Units").
NOW, THEREFORE, in consideration of employment and in further
consideration of these mutual covenants and agreements, the parties hereto, each
intending to be bound, covenant and agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings:
"Affiliate" means, when used with reference to a specified Person,
any Person that directly or indirectly controls or is controlled by or is under
common control with the specified Person. As used in this definition, "control"
(including, with its correlative meanings, "controlled by" and "under common
control with") shall mean possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise). With respect to any
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Person who is an individual, "Affiliates" shall also include, without
limitation, any member of such individual's Family Group.
"Benefits" has the meaning set forth in Section 2(c)(ii).
"Board" means Holdings' Board of Directors.
"Bonus" means awards under the MIC Plan or the New MIC Plan.
"Bonus Year" means an annual bonus period under the MIC Plan or the
New MIC Plan.
"Cause" means the occurrence of any one of the following as
determined by the Board: (i) a material breach of the Executive's covenants
under Section 4 or Section 5 of this Agreement; (ii) the commission by the
Executive of a felony, or any crime involving theft, dishonesty or moral
turpitude; (iii) the commission by the Executive of act(s) or omission(s) which
are willful and deliberate acts intended to harm or injure the business,
operations, financial condition or reputation of the Company, Holdings, any of
Holdings' equity holders, or any Affiliate of any of the foregoing; (iv) the
Executive's disregard of the directives of the Board; (v) the Executive's
drunkenness or use of drugs which interferes with the performance of the
Executive's duties under this Agreement, which drunkenness or use of drugs
continues after receipt of notice to the Executive from the Company of his
violation of this provision; or (vi) any attempt by the Executive to secure any
personal profit in connection with the business of the Company unless given
prior written approval by unanimous consent of the Board.
"Confidential Information" has the meaning set forth in Section
4(a)(i).
"Disability" means the inability, due to illness, accident, injury,
physical or mental incapacity or other disability, of the Executive to carry out
effectively his duties and obligations to the Company or to participate
effectively and actively in the management of the Company for a period of at
least 90 consecutive days or for shorter periods aggregating at least 150 days
(whether or not consecutive) during any twelve-month period, as determined in
the judgment of the Board.
"Family Group" means, with respect to any Person who is an
individual: (i) such Person's spouse, former spouse and descendants (whether
natural or adopted), parents and their descendants and any spouse of the
foregoing persons (collectively, "relatives") or (ii) the trustee, fiduciary or
personal representative of such Person and any trust solely for the benefit of
such Person and/or such Person's relatives.
"Good Reason" for resignation by the Executive means his resignation
because of: (i) a reduction in the annual base salary of the Executive, a
material reduction in the employee benefits granted to the Executive, or a
reduction in the Executive's percentage participation in the MIC Plan prior to
the approval and adoption of a New MIC Plan (as defined below) or a reduction in
the Executive's percentage participation in any New MIC Plan from the percentage
awarded to the Executive if and when a New MIC Plan is approved and adopted as
contemplated in clause (iii) below, (ii) a material modification to the MIC Plan
as in effect on the date hereof
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which adversely affects the determination of the Executive's bonus with respect
to the 2000 calendar year or thereafter if the MIC Plan continues to be in
effect for any calendar year after the 2000 calendar year unless such
modification is generally applicable to all participants in the MIC Plan and
such modification has been approved by (x) if the Board has less than three
Management Board Members, then all such Management Board Members or (y) if the
Board has three or more Management Board Members, then any two of such
Management Board Members, (iii) a material modification to the new Management
Incentive Plan which is agreed upon by the Board and the Company's Chief
Executive Officer and approved by the Board for years beginning after calendar
year 2000 (the "New MIC Plan"), as such New MIC Plan is in effect on the date of
such Board approval, which modification adversely affects the determination of
the Executive's bonus for any calendar year for which such New MIC Plan is
applicable, unless such modification is generally applicable to all participants
in the New MIC Plan and such modification has been approved by (x) if the Board
has less than three Management Board Members, then all such Management Board
Members or (y) if the Board has three or more Management Board Members, then any
two of such Management Board Members, (iv) a requirement that the Executive be
based at any office or location more than 50 miles from Tulsa, Oklahoma, (v) a
removal of the Executive as Vice President of Finance of the Company by action
of the Board, or (vi) an assignment, by action of the Board, to the Executive of
any duties and responsibilities that are substantially inconsistent with or
materially diminish the Executive's position, in each case, other than with the
consent of the Executive.
"Management Board Member" means any member of the Board who is also
a full-time employee of Holdings or any of its Subsidiaries.
"MIC Plan" means Holdings' and its Subsidiaries' Management
Incentive Compensation Plan for the 2000 calendar year.
"New MIC Plan" means Holdings' and its Subsidiaries' Management
Incentive Compensation Plan agreed upon by the Board and the Company's Chief
Executive Officer, effective January 1, 2001 or thereafter.
"Old Employment Agreement" has the meaning set forth in the third
WHEREAS clause.
"Operating Agreement" means the Limited Liability Company Agreement
of Holdings, dated as of August 1, 2000, as amended from time to time.
"Person" means an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a trust, a
joint venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors thereof is at the time owned or controlled, directly
or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a
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combination thereof, or (ii) if a partnership, limited liability company,
association or other business entity, a majority of the partnership or other
similar ownership interest thereof is at the time owned or controlled, directly
or indirectly, by any Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons shall be deemed to
have a majority ownership interest in a partnership, limited liability company,
association or other business entity if such Person or Persons shall be
allocated a majority of partnership, limited liability company, association or
other business entity gains or losses or shall be or control the managing
director, manager or a general partner of such partnership, limited liability
company, association or other business entity.
"Termination Date" means the date that the Executive ceases to be
employed by Holdings or any of its Subsidiaries for any reason.
2. Employment. (a) Employment. The Company agrees to employ the Executive,
and the Executive hereby accepts employment with the Company, upon the terms and
conditions set forth in this Agreement for the Employment Period (as herein
defined).
(b) Positions and Duties. (i) Commencing on the date hereof and
continuing during the Employment Period, the Executive shall serve as Vice
President of Finance of the Company under the supervision and direction of the
Board and shall have the normal duties, responsibilities and authority of a Vice
President of Finance of a corporation and such other duties as shall be assigned
to the Executive by the Board from time to time.
(ii) The Executive shall devote his best efforts and his full
business time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity which does not constitute
Disability) to the business and affairs of the Company. The Executive shall
perform his duties and responsibilities to the best of his abilities in a
diligent, trustworthy, businesslike and efficient manner. The foregoing shall
not preclude the Executive from devoting reasonable time to civic and charitable
affairs and with the consent of the Board serving on a maximum of two boards
other than the Board or the board of directors of any Subsidiary of Holdings,
provided that such activities do not interfere in any material respect with the
performance of his duties hereunder. The Executive shall perform all services in
accordance with the policies, procedures and rules established by the Company.
In addition, the Executive shall comply with all laws, rules and regulations
that are generally applicable to the Company, its Affiliates and their
employees, directors and officers.
(c) Base Salary and Benefits. (i) Base Salary. During the Employment
Period, the Executive's base salary shall be in an amount set by the Board, but
under no circumstances will be less than $108,800 per annum (the "Base Salary"),
which salary shall be paid by the Company in regular installments in accordance
with the Company's general payroll practices and shall be subject to customary
withholding. On an annual basis, the Board shall review and determine the
appropriateness of an increase in the Base Salary as in effect as of the date of
such review.
(ii) Benefits. During the Employment Period, in addition to
the Base Salary payable to the Executive pursuant to Section 2(c)(i), the
Executive shall be entitled to
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participate in the Company's employee benefit programs (including, but not
limited to, option plans and benefit programs which provide group pension, life
and health insurance and other medical benefits), as the Company, with the
approval of the Board, may now or hereafter make available generally to its
management as well as the employee benefits listed on Exhibit A hereto; provided
that any awards under any option plans shall be set by the Board, in their sole
discretion. In addition, during calendar year 2000, the Executive shall be
entitled to participate at a level of no less than 60% in the MIC Plan, with any
awards under the MIC Plan to be set by the Board, and the calculation of the
bonus under the MIC Plan for the calendar year 2000 will be made as though the
transactions described in the Merger Agreement had not occurred. Effective
January 1, 2001, the MIC Plan will be replaced by the New MIC Plan which shall
be mutually agreed upon by the Board and the Company's Chief Executive Officer.
If a New MIC Plan is not agreed upon by the Board and the Company's Chief
Executive Officer, the Executive will have substantially the same bonus
opportunities as existed under the MIC Plan prior to the date hereof, taking
into account the new capital structure of the Company and its Affiliates. All
benefits the Executive shall be entitled to pursuant to this Section 2(c)(ii)
shall hereinafter be referred to as the "Benefits."
(iii) Expenses. The Company shall reimburse the Executive for
all reasonable and necessary business expenses incurred by the Executive in
performing his duties under this Agreement which are consistent with the
Company's policies, as approved by the Board, in effect from time to time with
respect to travel, entertainment and other business expenses subject to the
Company's receipt of supporting documentation in accordance with the Company's
customary reporting and documentation provisions.
(d) Term. (i) This Agreement is an employment contract for a term of
two (2) years beginning as of the date of the Closing Date of the Merger and
ending on the second anniversary of the date thereof (the "Initial Employment
Term"). At the end of the Initial Employment Term, and at the end of each
Additional Employment Term (as herein defined), unless the Company (with the
approval of the Board) has provided the Executive with at least sixty (60) days
advance written notice, so long as the Executive continues to be employed by the
Company, this employment contract shall automatically renew for a term of one
(1) year (each such additional term, an "Additional Employment Term"). The
Initial Employment Term and each Additional Employment Term shall be referred to
herein as an "Employment Term." Notwithstanding the foregoing, each Employment
Term is subject to early termination (x) by reason of the Executive's death or
Disability, (y) by resolution of the Board with or without Cause, or (z) upon
the Executive's voluntary resignation with or without Good Reason. For all
purposes under this Agreement, a delivery of a notice by the Company to the
Executive pursuant to this Section 2(d)(i) to avoid an Additional Employment
Term shall be treated as if an Employment Term has been terminated early by
resolution of the Board without Cause.
(ii) The period of the Initial Employment Term together with
each Additional Employment Term, if any, shall be referred to herein as the
"Employment Period." Notwithstanding any termination of the Executive's
employment by the Company (such termination, an "Employment Termination"), this
Agreement shall remain a valid and enforceable contract between the parties,
including without limitation Sections 3, 4 and 5 hereof.
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(e) Employment Termination. (i) If any Employment Term is terminated
early by resolution of the Board with Cause or by reason of the Executive's
voluntary resignation without Good Reason, then the Executive shall be entitled
to receive only all previously earned and accrued but unpaid Base Salary and
vacation time up to the date of the Employment Termination (and not any accrued
but unpaid Bonus as of the date of the Employment Termination).
(ii) If any Employment Term is terminated early by reason of
the Executive's death or Disability, then the Executive shall be entitled to
receive only (x) all previously earned and accrued but unpaid Base Salary and
vacation time up to the date of the Employment Termination, (y) if the date of
the Employment Termination is 3 months after the commencement of a Bonus Year,
then a portion of the Bonus earned by the Executive during such Bonus Year in
which such termination occurs determined on a pro rated basis based on the
number of days of the applicable Bonus Year prior to the date of the Employment
Termination as compared to the number of days in such Bonus Year, which payment
will be made when such Bonus for such Bonus Year would otherwise be payable and
(z) any Bonus earned by the Executive during any Bonus Year which ended prior to
the date of the Employment Termination and which has not been paid as of such
date, which payment will be made when such Bonus for such Bonus Year would
otherwise be payable.
(iii) If any Employment Term is terminated early by reason of
the Executive's voluntary resignation with Good Reason or by resolution of the
Board without Cause, then, subject to the last sentence of this section (iii),
the Executive shall be entitled to receive only the following: (v) all
previously earned and accrued but unpaid Base Salary and vacation time up to the
date of the Employment Termination, (w) his Base Salary and the Benefits marked
on Exhibit A with an "#" for the twelve-month period beginning on the date of
the Employment Termination; provided, however, that in lieu of providing such
benefits, the Company may elect to pay to the Executive the cost of premiums for
such benefits, (x) the Benefits marked on Exhibit A with a "+" for the
three-month period beginning on the date of the Employment Termination, (y) if
the date of the Employment Termination is 3 months after the commencement of a
Bonus Year, then a portion of the Bonus earned by the Executive during such
Bonus Year in which such termination occurs determined on a pro rated basis
based on the number of days of the applicable Bonus Year prior to the date of
the Employment Termination as compared to the number of days in such Bonus Year,
which payment will be made when such Bonus for such Bonus Year would otherwise
be payable and (z) any Bonus earned by the Executive during any Bonus Year which
ended prior to the date of the Employment Termination and which has not been
paid as of such date, which payment will be made when such Bonus for such Bonus
Year would otherwise be payable. Notwithstanding these payments or benefits, the
period for which the Executive is entitled to health care continuation coverage
under Section 4980B of the Internal Revenue Code of 1986, as amended, shall
begin to run on the date of the Executive's termination. As a condition to
receiving any payments pursuant to this section 2(e)(iii), the Executive shall
execute and deliver to the Company a general release (with ancillary covenants
not to xxx and other similar standard provisions) of the Company and its
Affiliates and their respective officers, directors and employees from all
claims of any kind whatsoever arising out of the Executive's employment or
termination thereof (including without limitation, civil rights claims), in such
form as reasonably requested by the Company; provided, however, that the
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release will not affect any contractual rights the Executive may otherwise have
under the Repurchase Agreement or any stock option plans of the Company or
option agreements thereunder; and provided further that the release shall not
apply to any rights to which the Executive is entitled in accordance with plan
provisions under any employee benefit plan or fringe benefit plan or program of
the Company and its Affiliates.
(iv) Except as expressly provided in this Section 2(e), the
Executive hereby agrees that upon and after the Employment Termination, no
severance compensation of any kind, nature or amount (including by operation of
law) shall be payable by Holdings, the Company or any of their respective
Subsidiaries or Affiliates to the Executive and the Executive hereby irrevocably
waives any claim for severance compensation of any kind, nature or amount
(including by operation of law).
(v) Except as expressly provided in this Section 2(e), upon
the Employment Termination, except as required by law, all of the Executive's
rights to Benefits hereunder (if any) shall cease.
(vi) Subject to restrictive covenants contained in Section 5,
the Executive may obtain other engagements or employment after the date of an
Employment Termination, and any compensation received or receivable by the
Executive shall not reduce any amounts which the Company is required to pay to
the Executive pursuant to this Agreement.
3. Work Product. The Executive agrees that all inventions, drawings,
improvements, developments, methods, processes, programs, designs and all
similar or related information which relates to the Company's or any of its
Subsidiaries' actual or anticipated business or research and development or
existing or future products or services and which are conceived, developed,
contributed to or made by the Executive (either solely or jointly with others)
while employed by the Company or any of its Subsidiaries ("Work Product") shall
be the sole and exclusive property of the Company or any such Subsidiary. The
Executive will promptly disclose such Work Product to the Company and perform
all actions requested by the Company (whether during or after employment) to
establish and confirm such ownership (including, without limitation,
assignments, consents, powers of attorney and other instruments).
4. Confidential Information. (a) The Executive acknowledges: (i)
That the Work Product, artificial intelligence systems, information, customer
lists, goodwill, observations and data disclosed to, developed by or obtained
by him while employed by the Company or any of its Subsidiaries concerning
the business or affairs of the Company or any such Subsidiary (including
without limitation the Company's and its Subsidiaries' technology, methods of
doing business and supplier and customer information) (collectively,
"Confidential Information") are highly confidential and uniquely valuable to
the Company and its Subsidiaries;
(ii) That such Confidential Information is and shall
continue to be the property of the Company or any such Subsidiary;
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(iii) That the Company and each of its Subsidiaries has a
proprietary interest in their respective Confidential Information, including
without limitation the identity of their respective customers and suppliers,
solicited customers, customer and supplier lists;
(iv) That the continued success of the Company and its
Subsidiaries depends in large part on keeping the Confidential Information from
becoming known to competitors of the Company and its Subsidiaries; and
(v) That the Company and its Subsidiaries will be
irreparably harmed by disclosure of any Confidential Information.
(b) Therefore, the Executive agrees: (i) That, during his employment
and for all times thereafter, except as required by law or court order, he shall
not directly or indirectly disclose to any unauthorized person or use for his
own account any Confidential Information without the prior written consent of
the Company, unless and to the extent that the aforementioned matters become
generally known to and available for use by the public other than as a result of
the Executive's acts or omissions to act;
(ii) To use his best efforts and diligence to safeguard the
Confidential Information and to protect it against disclosure, misuse,
espionage, loss or theft;
(iii) That upon the Employment Termination or at any other
time the Company may request, for whatever reason, the Executive shall deliver
(and in the event of the Executive's death or Disability, his representative
shall deliver) to the Company all computer equipment or backup files of or
relating to the Company and its Subsidiaries, all memoranda, correspondence,
customer data, notes, plans, records, reports, manuals, photographs, computer
tapes and software and other documents and data (and copies thereof) relating to
the Confidential Information, the Work Product or the business of the Company or
any of its Subsidiaries which he may then possess or have under his control. If
the Company requests, the Executive (or his representative) agrees to provide
written confirmation that the Executive has returned all such materials to the
Company or one of its Subsidiaries; and
(iv) That upon the Employment Termination or at any other time
the Company may request, for whatever reason, the Executive shall assign all
rights, title and interest in the Confidential Information, the Work Product,
all computer equipment or backup files of or relating to the Company or any of
its Subsidiaries, all memoranda, correspondence, customer data, notes, plans,
records, reports, manuals, photographs, computer tapes and software and other
documents and data (and copies thereof) relating to the Confidential
Information, the Work Product or the business of the Company or any of its
Subsidiaries which the Executive may then possess, has under his control, or has
ever developed, obtained, or contributed to during his tenure with the Company.
5. Noncompete, Nonsolicitation. (a) The Executive agrees that, during the
time he is employed by the Company or any of its Subsidiaries and during any
applicable Post-Termination Period (as herein defined) (the "Noncompete
Period"), he shall not directly or indirectly own, operate, manage, control,
participate in, consult with, advise, provide services for,
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or in any manner engage in any business (including by himself or in association
with any person, firm, corporate or other business organization or through any
other entity) in competition with, or potential competition with, the businesses
of the Company or any of its Subsidiaries as such businesses (the "Businesses")
exist during the Executive's employment by the Company, within the United States
or any other geographical area in which the Company or any of its Subsidiaries
engages or plans to engage in the Businesses (the "Geographical Area"). Nothing
herein shall prohibit the Executive from being a passive owner of not more than
2% of the outstanding stock of a corporation which is publicly traded, so long
as the Executive has no active participation in the business of such
corporation. For purposes of this Section 5, "Post-Termination Period" means the
twelve (12) month period beginning on the Termination Date.
(b) During the Noncompete Period, the Executive shall not directly
or indirectly through another entity (i) induce or attempt to induce any
employee of the Company or any of its Subsidiaries to leave the employ of the
Company or any such Subsidiary, or in any way interfere with the relationship
between the Company or any of its Subsidiaries and any employee thereof,
including without limitation, inducing or attempting to induce any union,
employee or group of employees to interfere with the business or operations of
the Company or any of its Subsidiaries, (ii) hire any person who was an employee
of the Company or any of its Subsidiaries at any time during the Executive's
employment period, or (iii) induce or attempt to induce any customer, supplier,
distributor, franchisee, licensee or other business relation of the Company or
any of its Subsidiaries to cease doing business with the Company or any such
Subsidiary, or in any way interfere with the relationship between any such
customer, supplier, distributor, franchisee, licensee or business relation and
the Company or any of its Subsidiaries.
(c) The Executive agrees that: (i) the covenants set forth in this
Section 5 are reasonable in geographical and temporal scope and in all other
respects, (ii) Holdings and the Company would not have entered into this
Agreement but for the covenants of the Executive contained herein, and (iii) the
covenants contained herein have been made in order to induce Holdings and the
Company to enter into this Agreement.
(d) If, at the time of enforcement of this Section 5, a court shall
hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law.
(e) The Executive recognizes and affirms that in the event of his
breach of any provision of this Section 5, money damages would be inadequate and
Holdings and the Company would have no adequate remedy at law. Accordingly, the
Executive agrees that in the event of a breach or a threatened breach by the
Executive of any of the provisions of this Section 5, Holdings and the Company,
in addition and supplementary to other rights and remedies existing in its
favor, may apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive or other relief in order to enforce or
prevent any violations of the provisions hereof (without posting a bond or other
security).
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6. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and delivered personally, mailed by certified or registered mail, return
receipt requested and postage prepaid, sent via a nationally recognized
overnight courier, charges prepaid, or sent via facsimile. Such notices, demands
and other communications will be sent to the address indicated below:
To Holdings or the Company:
GEEG Holdings, L.L.C.
0000 Xxxxx Xxxx, Xxxxx 0000
Xxxxx, XX 00000
Attention: Secretary
Telecopy No.: (000) 000-0000
With a copy, which shall not constitute notice, to:
Harvest Partners, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telecopy No.: (000) 000-0000
and
Xxxx X. Xxxxx
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
To the Executive:
at the Executive's last
address or telecopy number on
the records of the Company
or such other address or to the attention of such other Person as the recipient
party shall have specified by prior written notice to the sending party;
provided, that the failure to deliver copies of notices as indicated above shall
not affect the validity of any notice. Any such notice, demand or other
communication shall be deemed to have been received (i) when delivered, if
personally delivered, or sent by nationally-recognized overnight courier or sent
via facsimile or (ii) on the third business day following the date on which the
piece of mail containing such notice, demand or other communication is posted if
sent by certified or registered mail.
7. Miscellaneous. (a) Warranty by the Executive. The Executive
represents and warrants to Holdings and the Company that he is not a party to
any agreement containing a
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noncompetition provision or other restriction with respect to (i) the nature of
any services or business which he is entitled to perform or conduct for the
Company under this Agreement, or (ii) the disclosure or use of any information
which directly or indirectly relates to the nature of the business of the
Company or any of its Subsidiaries or the services to be rendered by the
Executive under this Agreement.
(b) Severability. If any provision or clause of this Agreement, or
portion thereof shall be held by any court or other tribunal of competent
jurisdiction to be illegal, invalid, or unenforceable in such jurisdiction, the
remainder of such provision shall not be thereby affected and shall be given
full effect, without regard to the invalid portion. It is the intention of the
parties that, if any court construes any provision or clause of this Agreement,
or any portion thereof, to be illegal, void or unenforceable because of the
duration of such provision or the area matter covered thereby, such court shall
reduce the duration, area, or matter of such provision, and, in its reduced
form, such provision shall then be enforceable and shall be enforced.
(c) Complete Agreement. This Agreement shall embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way,
including, but not limited to, the Term Sheet between GEEG Acquisition, L.L.C.
and the Executive Relating to the Term of Employment and Equity Compensation,
dated July 12, 2000, the Old Employment Agreement, the Agreements evidencing the
grant of Performance Vesting Options and Time Vesting Options to the Executive
under the Holdings' 1998 Option Plan, and the Employee Subscription Agreements,
dated June 8, 1998 and December 18, 1998, between Holdings and the Executive.
This Agreement does not supersede the Repurchase Agreement between Holdings and
the Executive which is being executed concurrently herewith, or any future
agreements evidencing the grant of options to the Executive under Holdings' 2000
Option Plan, or any future option plan of Holdings.
(d) Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(e) Successors and Assigns, Transfer. This Agreement is intended to
bind and inure to the benefit of and be enforceable by the Executive, Holdings
and the Company and their respective successors, heirs and assigns.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the state of Delaware, without giving effect to
any rules, principles or provisions of choice of law or conflict of laws.
(g) Remedies. Holdings, the Company and the Executive will be
entitled to enforce its respective rights under this Agreement specifically, to
recover damages and costs (including reasonable attorneys' fees and expenses)
caused by any breach of any provision of this Agreement and to exercise all
other rights existing in its favor. The parties hereto agree and acknowledge
that Holdings and the Company will suffer irreparable harm and money damages may
not be an adequate remedy for any breach of the provisions of this Agreement by
the
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12
Executive and that any such party may in its sole discretion apply to any court
of law or equity of competent jurisdiction (without posting any bond or deposit)
for specific performance and/or other injunctive relief in order to enforce or
prevent any violations of the provisions of this Agreement.
(h) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of Holdings (with the
approval of the Board), the Company and the Executive.
(i) Tax Matters. (i) The Executive shall indemnify, defend and hold
harmless Holdings and the Company (and their respective officers, directors,
employees and members) for any liability associated with federal, state or local
income tax withholding and employment tax withholding in respect of the
Executive or his transferees (including all interest, penalties and additions to
tax with respect thereto) resulting from, or arising with respect to, the
issuance to the Executive of any units of interest in Holdings, whether before
or after the Merger, whether acquired by purchase from the Company or otherwise,
or the holding by the Executive or his transferees of any such units of interest
in Holdings.
(ii) The Executive hereby irrevocably waives any and all claims,
rights and recourse under Section 10(j) of the Old Employment Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first written above.
GEEG HOLDINGS, L.L.C.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name:
Title:
XXXXXX MANUFACTURING, L.L.C.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name:
Title:
/s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
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14
Exhibit A
Benefits Schedule
Xxxxx X. Xxxxxx
+ Company Paid Vehicle
Indian Springs Country Club Membership
+ Cellular Phone
+ Company Gas Card
+ Vehicle Maintenance
+ Vehicle Tags
# Medical Insurance
# Dental Insurance
Short Term Disability
Long Term Disability
# Life Insurance
Salary Continuation
Accidental Death & Dismemberment
# Travel Accident Insurance
9 Paid Holidays Per Year
4 Weeks Paid Vacation Per Year
MIC Bonus Plan at 60% Level
401(k) Plan
