Exhibit 10.21
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT (this "Agreement") is entered into as of May 7,
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:
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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 quotient resulting from dividing 31,558,522 by
the number of Common Units issued and outstanding on the date of execution
and delivery of the underwriting agreement (the "Underwriting Agreement")
by and among the Company,
Credit Suisse First Boston Corporation, Xxxxxxx Xxxxx Xxxxxx Inc., Deutsche
Bank Alex. Xxxxx Inc. and Xxxxxxx Xxxxx & Associates, Inc., as
representatives of the several underwriters, with respect to the IPO by
each of the parties thereto (the "Effective Date"); 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 initial price per share at which shares of Common Stock will
be offered in the IPO.
1.2. Issuance of Stock Certificates. The Company shall issue separate
stock certificates to, or cause separate book entries to be made on behalf of,
each Purchaser with respect to the Common Stock issued pursuant to each of
Section 1.1(a) and 1.1(b) hereof.
1.3. 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 pursuant to Section
1.1(a) or 1.1(b) hereof 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 initial price per share at which shares of Common
Stock will be offered in the IPO; provided, however, that if a holder of shares
of Common Stock of the Company would be entitled to fractional shares of Common
Stock of the Company under 1.1(a) and 1.1(b) hereof in an aggregate amount equal
to or greater than one whole share of Common Stock of the Company, such holder
shall receive one additional share of Common Stock of the Company (which share
of Common Stock shall be deemed to be issued pursuant to Section 1.1(b)) and the
remaining fractional shares shall be paid in cash as set forth above. 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.
1.4. 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 the Effective Date. 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
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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 or regulations. Such Purchaser further understand
that the Company has no obligation or present intention of so registering the
Common Stock (other than its obligations under the Registration Rights
Agreement, dated as of the date hereof, by and among the Company and the other
parties thereto), 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 immediately
following the execution and delivery of the Underwriting Agreement by each of
the parties thereto on the Effective Date.
3.2. Legend. 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."
Any legend endorsed on a certificate representing any portion of the shares of
Common Stock pursuant to this Section 3.2 and any stop transfer instructions or
notations on the Company's records with respect to such Common Stock shall be
removed or lifted and the Company shall issue a certificate without such legend
to the holder of such Common Stock if (i) the transfer of such Common Stock has
been registered under the Securities Act or (ii) such holder provides the
Company with an opinion of counsel (which counsel and opinion are reasonably
satisfactory to
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the Company) stating that a public sale or transfer of such Common Stock may be
made without registration under the Securities Act and that such legend is not
required under any applicable state securities laws.
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).
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.
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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:
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:/s/ Xxxxxxx Xxxxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title:
[Signature page for this Exchange Agreement]
GEEG ACQUISITION HOLDINGS L.L.C.
By:/s/ Xxxxxxx Xxxxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title:
[Signature page for this Exchange Agreement]
GLOBAL POWER EQUIPMENT GROUP INC.
By:/s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: President
[Signature page for this Exchange Agreement]
SMC POWER HOLDINGS, L.L.C.
By:/s/ Xxxxxx Xxxxx
-------------------------
Name: Xxxxxx Xxxxx
Title: Managing Member
[Signature page for this Exchange Agreement]
SAW MILL INVESTMENTS, L.L.C.
By:/s/ Xxxxxx Xxxxx
-------------------------
Name: Xxxxxx Xxxxx
Title: President
[Signature page for this Exchange Agreement]
CASCADE INVESTMENT PARTNERS,
L.L.C.
By:/s/ Xxxxxxx X. XxxXxxxx
-------------------------
Name: Xxxxxxx X. XxxXxxxx
Title: Managing Director
[Signature page for this Exchange Agreement]
PARIBAS PRINCIPAL INCORPORATED
By:/s/ Xxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
[Signature page for this Exchange Agreement]
INDOSUEZ GEEG PARTNERS
By: Signature Illegible
-------------------------
Name:
Title:
[Signature page for this Exchange Agreement]
By:/s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxx
[Signature page for this Exchange Agreement]
By:/s/ Xxxxx Xxxxxxx
-------------------------
Xxxxx Xxxxxxx
[Signature page for this Exchange Agreement]
By:/s/ Xxxx Xxxxxxxxxx
-------------------------
Xxxx Xxxxxxxxxx
[Signature page for this Exchange Agreement]
By:/s/ Xxxx Xxxxxxxxxxxx
-------------------------
Xxxx Xxxxxxxxxxxx
[Signature page for this Exchange Agreement]
By:/s/ Xxxxxxx Xxxxxxx
-------------------------
Xxxxxxx Xxxxxxx
[Signature page for this Exchange Agreement]
By:/s/ Xxxxx Xxxxxx
-------------------------
Xxxxx Xxxxxx
[Signature page for this Exchange Agreement]
By:/s/ Xxxx Xxxxxx
-------------------------
Xxxx Xxxxxx
[Signature page for this Exchange Agreement]
By:/s/ Xxxxxx Xxxxxx
-------------------------
Xxxxxx Xxxxxx
[Signature page for this Exchange Agreement]
By: /s/ Tike Xxxx
-------------------------------------
Tike Xxxx
[Signature page for this Exchange Agreement]
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
Xxxx Xxxxxxxx
[Signature page for this Exchange Agreement]
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx
[Signature page for this Exchange Agreement]
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
[Signature page for this Exchange Agreement]
By: /s/ Xxxx XxXxxxxxx
-------------------------------------
Xxxx XxXxxxxxx
[Signature page for this Exchange Agreement]
By: /s/ Bengt Sohlen
-------------------------------------
Bengt Sohlen
SCHEDULE I
Preferred Units Class A Common
Purchaser Exchanged Units Exchanged
--------- --------- ---------------
GEEG Acquisition Holdings Corp. 558,517.44 620,575.3
c/o Harvest Partners, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxx
GEEG Acquisition Holdings LLC 248,850.00 276,500.0
c/o Harvest Partners, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxx
SMC Power Holdings, L.L.C. 24,423.81 27,137.5
c/o Saw Mill Capital, LLC
000 Xxxxxxxxxxxxx Xx.
Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Saw Mill Investments, L.L.C. 26,263.32 29,181.5
c/o Saw Mill Capital, LLC
000 Xxxxxxxxxxxxx Xx.
Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Cascade Investment Partners, 8,100.00 9,000.0
L.L.C.
c/o Capital Concepts LLC
000 Xxxxx Xxxxxx Xx.
Xxxxx 0000
Xxxxxxx, XX 00000
Schedule I
Page 2
Paribas Principal Incorporated 15,157.63 16,841.8
c/o Paribas
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xx Xxxxx
Indosuez GEEG Partners 13,137.09 14,596.8
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxx
Xxxxxxx X. Xxxxxxxx 2,918.15 3,242.4
c/o Saw Mill Capital, LLC
000 Xxxxxxxxxxxxx Xx.
Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Xxxxx Xxxxxxx 20,120.06 22,355.6
Global Energy Equipment Group
0000 Xxxxx Xxxx
Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Xxxx Xxxxxxxxxx 15,638.32 17,375.9
Deltak, L.L.C.
0000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Xxxx Xxxxxxxxxxxx 14,916.36 16,573.7
Global Energy Equipment Group
0000 Xxxxx Xxxx
Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Schedule I
Page 3
Xxxxxxx Xxxxxxx 8,130.44 9.033.8
Deltak, L.L.C.
0000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Xxxxx Xxxxxx 6,965.30 7,739.2
Global Energy Equipment Group
0000 Xxxxx Xxxx
Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Xxxx Xxxxxx 4,626.12 5,140.2
Global Energy Equipment Group
0000 Xxxxx Xxxx
Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx 4,515.06 5,016.7
Global Energy Equipment Group
0000 Xxxxx Xxxx
Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Tike Xxxx 4,415.65 4,906.3
Deltak, L.L.C.
0000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Xxxx Xxxxxxxx 4,570.59 5,078.5
Global Energy Equipment Group
0000 Xxxxx Xxxx
Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Schedule I
Page 4
Xxxxx Xxxx 4,920.47 5,467.2
Deltak, L.L.C.
0000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Xxxxx Xxxxxx 4,781.63 5,312.9
Deltak, L.L.C.
0000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Xxxx XxXxxxxxx 18,000.00 20,000.0
Consolidated Fabricators, Inc.
00 Xxxxxx Xxxxxxxx
Xxxxxxxx, XX 00000
Bengt Sohlen 0 1,205.0
c/o Harvest Partners, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Attn: Xxxxxxx Xxxxxxxxxx
