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EXHIBIT 10.15
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT (this "Agreement") is entered into as of
May __, 2001, by and among Global Power Equipment Group Inc. (the "Company"), a
Delaware corporation, and each of the Persons named on Schedule I attached
hereto (each such Person, a "Purchaser" and, collectively, the "Purchasers").
Capitalized terms used and not otherwise defined herein shall
have the respective meaning given such term in the Limited Liability Company
Agreement of GEEG Holdings, L.L.C. ("GHLLC"), a Delaware limited liability
company, dated as of August 1, 2000.
W I T N E S S E T H:
WHEREAS, each Purchaser owns the number of Preferred Units and
Class A Common Units (collectively, with respect to such Purchaser, "Units") in
GHLLC set forth opposite such Purchaser's name on Schedule I attached hereto;
WHEREAS, each Purchaser desires to contribute such Purchaser's
Units to the Company in exchange for shares of common stock (the "Common
Stock"), par value $0.01 per share, of the Company;
WHEREAS, the Company desires to issue shares of Common Stock to
each such Purchaser in exchange for all of such Purchaser's Units; and
WHEREAS, with respect to each Purchaser other than GEEG
Acquisition Holdings Corp., the parties hereto intend for the transactions
contemplated hereby to qualify as a tax free contribution under Section 351(d)
of the Internal Revenue Code of 1986, as amended (the "Code") and, with respect
to GEEG Acquisition Holdings Corp., the parties hereto intend for the
transactions contemplated hereby to qualify as a tax free reorganization under
Section 368(a)(1) of the Code.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and the mutual benefits hereby provided, the Company and the
Purchasers, intending to be bound legally, hereby agree as follows:
Section 1. Exchanges of Units for Common Stock.
1.1. Exchanges. Subject to the terms and conditions
hereinafter set forth, each Purchaser hereby agrees to transfer to the Company
such Purchaser's Units and the Company hereby agrees to issue to such Purchaser
shares of Common Stock as follows:
(a) Each Common Unit shall be exchanged for a number of
shares of Common Stock equal to the amount obtained when one (1) is
multiplied by the quotient resulting from dividing (i) the value of the
Company (as determined by the underwriters in connection with the
initial public offering (the "IPO") of shares of Common Stock), less the
aggregate of the gross cash proceeds received by the Company in the IPO
and the aggregate capital contribution with respect to the Preferred
Units, divided by the
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aggregate amount of issued and outstanding Common Units and Common Units
into which employee stock options granted pursuant to the 2000 Option
Plan are exercisable on the date of consummation of the IPO (the
"Effective Date") by (ii) the price per share at which shares of Common
Stock will be offered in the IPO; and
(b) Each Preferred Unit shall be exchanged for the number of
shares of Common Stock equal to the amount obtained when one hundred
(100) is divided by the price per share at which shares of Common Stock
will be offered in the IPO.
1.2. No Fractional Shares. No fractional shares of Common
Stock of the Company shall be issued under this Agreement and any fractional
share interests will not entitle the owner thereof to vote or to have any rights
of a holder of Common Stock of the Company. In lieu of any such fractional
shares, each holder of shares of Common Stock of the Company who would otherwise
have been entitled to a fraction of a share of Common Stock of the Company shall
be paid an amount in cash (without interest) equal to the product of (i) such
fractional part of a share of Common Stock of the Company multiplied by (ii) the
price per share at which shares of Common Stock will be offered in the IPO. As
promptly as practicable after the determination of the amount of cash, if any,
to be paid to holders of fractional interests, the Company will forward payments
to such holders of fractional interests subject to and in accordance with the
terms hereof.
1.3. Closing. The exchanges referred to in Section 1.1 (the
"Closing") shall take place at the offices of White & Case LLP, 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other place as shall be mutually
agreed to by the parties hereto, on such date and time as shall be mutually
agreed to by the parties hereto. Such date is herein referred to as the "Closing
Date."
Section 2. Representations of the Purchasers
Each Purchaser represents and warrants to the Company as
follows:
2.1. Such Purchaser represents that such Purchaser is not
acquiring the Common Stock with a view to, or for resale in connection with, any
distribution of the Common Stock in violation of the Securities Act of 1933 (the
"Securities Act"). Such Purchaser understands that the Common Stock has not been
registered under the Securities Act or the securities laws of any state and that
the Common Stock has been issued to such Purchaser by reason of specific
exemptions under the provisions thereof which depend in part upon the investment
intent of such Purchaser and upon the other representations made by such
Purchaser in this Agreement. Such Purchaser understands that the Company is
relying upon the representations and agreements made by such Purchaser in this
Agreement.
2.2. Such Purchaser understands that such Purchaser may not
sell or transfer the Common Stock purchased pursuant to this Agreement unless
the Common Stock is registered pursuant to the requirements of the Securities
Act and of any applicable state or "blue sky" securities laws or regulations,
or, if required by the Company, such Purchaser furnishes an opinion of counsel,
in form and substance satisfactory to the Company, to the effect that
registration is not then required under the Securities Act or under any
applicable state or "blue sky" securities laws
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or regulations. Such Purchaser further understand that the Company has no
obligation or present intention of so registering the Common Stock, and that
there is no assurance that any exemption from registration under the Securities
Act will be available or, if available, that such exemption will allow such
Purchaser to dispose of or otherwise transfer any or all of the shares of Common
Stock in the amounts or at the times that such Purchaser may propose.
2.3. Such Purchaser (i) has such knowledge, sophistication
and experience in business and financial matters that such Purchaser is capable
of evaluating the merits and risks of the exchange referred to in Section 1.1
hereof, (ii) fully understands the nature, scope and duration of the limitations
applicable to the Common Stock, (iii) is able to bear the economic risk of the
exchange referred to in Section 1.1 hereof, and (iv) is an "Accredited Investor"
as defined in Regulation D under the Securities Act.
Section 3. Miscellaneous
3.1. Effectiveness. This Agreement shall be effective as of
12:01 AM on the Effective Date.
3.2. Legend. So long as applicable, each certificate
representing any portion of the shares of Common Stock shall be stamped or
otherwise imprinted with a legend in the following form:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), and
such securities may not be offered, sold, pledged or otherwise
transferred except (1) pursuant to an exemption from, or in a
transaction not subject to, the registration requirements under the
Securities Act or (2) pursuant to an effective registration statement
under the Securities Act, in each case in accordance with any applicable
securities laws of any State of the United States."
After the above requirement for a legend is no longer applicable because the
shares of Common Stock are freely transferable under the Securities Act, the
Company shall remove such legend upon request from a holder of such shares of
Common Stock, if outside counsel for such holder reasonably determines that the
transfer of such shares of Common Stock is no longer restricted by the
Securities Act and the general counsel of the Company reasonably concurs in such
determination.
3.3. Termination, Waiver, Amendment. Neither this Agreement
nor any provisions hereof shall be waived, modified, changed, discharged or
terminated except by an instrument in writing signed by the party against whom
such waiver, modification, change, discharge or termination is sought; provided,
however, that if the transactions contemplated by this Agreement are not
consummated by August 31, 2001, this Agreement shall terminate.
3.4. Assignability. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall be
assignable by either the Company or any Purchaser, without the prior written
consent of the other parties hereto (in the case of a proposed assignment by the
Company) or the Company (in the case of a proposed assignment by such
Purchaser).
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3.5. Power of Attorney. (a) Each Purchaser, by its execution
hereof, hereby irrevocably makes, constitutes and appoints the Board of
Directors as its true and lawful agent and attorney-in-fact, with full power of
substitution and full power and authority in its name, place and stead to make,
execute, sign, acknowledge, swear to, record and register all certificates and
other instruments deemed advisable by the Board of Directors to carry out the
provisions of this Agreement.
(b) The foregoing power of attorney:
(i) is coupled with an interest, shall be
irrevocable and shall survive the death, incapacity or
bankruptcy of each Purchaser; and
(ii) may be exercised by the Board of Directors
either by authorizing a Person to sign separately as
attorney-in-fact for each Purchaser or, after listing all of the
Purchasers executing an instrument, by a single signature of a
Person authorized by the Board of Directors acting as
attorney-in-fact for all of them.
3.6. Severability. If any provision of this Agreement or the
application of any such provision to any Person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
3.7. Section and Other Headings. The section headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
3.8. Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior arrangements or understandings (whether written or
oral) with respect thereto.
3.9. Counterparts. For the convenience of the parties, any
number of counterparts of this Agreement may be executed by the parties hereto
and each such executed counterpart shall be deemed to be an original instrument.
3.10. Notices. All notices and other communications provided
for herein and all legal process in regard hereto shall be validly given, made
or served, if in writing and delivered by personal delivery, overnight courier,
telecopier or registered or certified mail, return-receipt requested and postage
prepaid addressed as follows:
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If to a Purchaser, to:
The address set forth under such Purchaser's
name on Schedule I attached hereto
If to the Company, to:
Global Power Energy Group Inc.
c/o Harvest Partners, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Any such communication shall be deemed given, made or served as
of the date so delivered or, in the case of any communication delivered by mail,
as of the date so received.
3.11. GOVERNING LAW. THE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO SUCH STATE'S CHOICE OF LAW PROVISIONS.
* * * * *
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IN WITNESS WHEREOF, the Company and each Purchaser has executed
this Agreement as of the date first written above.
GEEG ACQUISITION HOLDINGS CORP.
By:
----------------------------
Name:
Title:
7
[Signature page for this Exchange Agreement]
GEEG ACQUISITION HOLDINGS LLC
By:
----------------------------
Name:
Title:
8
[Signature page for this Exchange Agreement]
GLOBAL POWER EQUIPMENT GROUP INC.
By:
-----------------------------
Name:
Title:
9
[Signature page for this Exchange Agreement]
SMC POWER HOLDINGS, L.L.C.
By:
-----------------------------
Name:
Title:
10
[Signature page for this Exchange Agreement]
SAW MILL INVESTMENTS, L.L.C.
By:
-----------------------------
Name:
Title:
11
[Signature page for this Exchange Agreement]
CASCADE INVESTMENT PARTNERS,
L.L.C.
By:
-----------------------------
Name:
Title:
12
[Signature page for this Exchange Agreement]
PARIBAS PRINCIPAL INCORPORATED
By:
-----------------------------
Name:
Title:
13
[Signature page for this Exchange Agreement]
INDOSUEZ GEEG PARTNERS
By:
-----------------------------
Name:
Title:
14
[Signature page for this Exchange Agreement]
By:
-----------------------------
Xxxxxxx X. Xxxxxxxx
15
[Signature page for this Exchange Agreement]
By:
-----------------------------
Xxxxx Xxxxxxx
16
[Signature page for this Exchange Agreement]
By:
-----------------------------
Xxxx Xxxxxxxxxx
17
[Signature page for this Exchange Agreement]
By:
-----------------------------
Xxxx Xxxxxxxxxxxx
18
[Signature page for this Exchange Agreement]
By:
-----------------------------
Xxxxxxx Xxxxxxx
19
[Signature page for this Exchange Agreement]
By:
-----------------------------
Xxxxx Xxxxxx
20
[Signature page for this Exchange Agreement]
By:
-----------------------------
Xxxx Xxxxxx
21
[Signature page for this Exchange Agreement]
By:
-----------------------------
Xxxxxx Xxxxxx
22
[Signature page for this Exchange Agreement]
By:
-----------------------------
Tike Xxxx
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[Signature page for this Exchange Agreement]
By:
-----------------------------
Xxxx Xxxxxxxx
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[Signature page for this Exchange Agreement]
By:
-----------------------------
Xxxxx Xxxx
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[Signature page for this Exchange Agreement]
By:
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Xxxxx Xxxxxx
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[Signature page for this Exchange Agreement]
By:
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Xxxx XxXxxxxxx
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[Signature page for this Exchange Agreement]
By:
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Bengt Sohlen
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SCHEDULE I
Preferred Units Class A Common
Purchaser Exchanged Units Exchanged
--------- --------- ---------------
GEEG Acquisition Holdings Corp.
[Address] 558,517.44 620,575.3
GEEG Acquisition Holdings LLC
[Address] 248,850.00 276,500.0
SMC Power Holdings, L.L.C.
[Address] 24,423.81 27,137.5
Saw Mill Investments, L.L.C.
[Address] 26,263.32 29,181.5
Cascade Investment Partners, L.L.C.
[Address] 8,100.00 9,000.0
Paribas Principal Incorporated
[Address] 15,157.63 16,841.8
Indosuez GEEG Partners
[Address] 13,137.09 14,596.8
Xxxxxxx X. Xxxxxxxx
[Address] 2,918.15 3,242.4
Xxxxx Xxxxxxx
[Address] 20,120.06 22,355.6
Xxxx Xxxxxxxxxx
[Address] 15,638.32 17,375.9
Xxxx Xxxxxxxxxxxx
[Address] 14,916.36 16,573.7
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Schedule I
Page 2
Xxxxxxx Xxxxxxx
[Adress] 8,130.44 9.033.8
Xxxxx Xxxxxx
[Address] 6,965.30 7,739.2
Xxxx Xxxxxx
[Address] 4,626.12 5,140.2
Xxxxxx Xxxxxx
[Address] 4,515.06 5,016.7
Tike Xxxx
[Address] 4,415.65 4,906.3
Xxxx Xxxxxxxx
[Address] 4,570.59 5,078.5
Xxxxx Xxxx
[Address] 4,920.47 5,467.2
Xxxxx Xxxxxx
[Address] 4,781.63 5,312.9
Xxxx XxXxxxxxx
[Address] 18,000.00 20,000.0
Bengt Sohlen
[Address] 0 1,205.0
