Exhibit 10.12
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is dated as of May 1, 2002
(the "Effective Date"), by and between Global Power Equipment Group Inc., a
Delaware corporation (the "Company"), and Xxxxx X. Xxxxxxx (the "Executive").
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to such terms in Section 1 of this Agreement.
WHEREAS, the Company and the Executive desire to enter into an agreement
regarding the employment by the Company of the Executive effective as of the
Effective Date, which agreement shall supersede the Executive's current
Employment Agreement, dated as of August 1, 2000, among the Company (as
successor by merger to GEEG Holdings, L.L.C., a Delaware limited liability
company (the "Predecessor Company")), Xxxxxx Manufacturing, L.L.C., a Delaware
limited liability company, and the Executive (the "Old Employment Agreement");
and
WHEREAS, the Executive is entrusted with knowledge of the particular
business methods of the Company and its Subsidiaries and is trained and
instructed in the particular operation methods of the Company and its
Subsidiaries, and the relationship between the Company and the Executive is one
in which the Company places special trust and confidence in the Executive.
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:
"Additional Employment Term" has the meaning set forth in Section
2(d)(i) of this Agreement.
"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 Person who is an individual, "Affiliates" shall also
include, without limitation, any member of such individual's Family Group.
"Base Salary" has the meaning set forth in Section 2(c)(i) of this
Agreement.
"Benefits" has the meaning set forth in Section 2(c)(ii) of this
Agreement.
"Board" means the Company's Board of Directors.
"Bonus" means awards under the MIC Plan or a New MIC Plan.
"Bonus Year" means an annual bonus period under the MIC Plan or a
New MIC Plan.
"Businesses" has the meaning set forth in Section 5(a) of this
Agreement.
"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 or any Affiliate of the Company; (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) of this Agreement.
"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.
"Effective Date" means May 1, 2002.
"Employment Period" has the meaning set forth in Section 2(d)(ii) of
this Agreement.
"Employment Term" has the meaning set forth in Section 2(d)(i) of
this Agreement.
"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.
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"Geographical Area" has the meaning set forth in Section 5(a) of
this Agreement.
"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 or a reduction in the
Executive's percentage participation in any New MIC Plan from the
percentage previously awarded to the Executive if and when a New MIC Plan
is approved and adopted, (ii) a material modification to the MIC Plan as
in effect on the date hereof which adversely affects the determination of
the Executive's bonus with respect to the 2002 calendar year or thereafter
if the MIC Plan continues to be in effect for any calendar year after the
2002 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 a New MIC Plan, 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 Chief Executive Officer
and President 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.
"Initial Employment Period" has the meaning set forth in Section
2(d)(i) of this Agreement.
"Management Board Member" means any member of the Board who is also
a full-time employee of the Company or any of its Subsidiaries.
"MIC Plan" means the Company's and its Subsidiaries' Management
Incentive Compensation Plan for the 2002 calendar year and thereafter
until a New MIC Plan is approved and adopted.
"New MIC Plan" means the Company's and its Subsidiaries' Management
Incentive Compensation Plan approved and adopted by the Board to be
effective for any calendar year after 2002.
"Noncompete Period" has the meaning set forth in Section 5(a) of
this Agreement.
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"Old Employment Agreement" has the meaning set forth in the first
WHEREAS clause of this Agreement.
"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.
"Post-Termination Period" has the meaning set forth in Section 5(a)
of this Agreement.
"Predecessor Company" means GEEG Holdings, L.L.C.
"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 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 the Company or any of its Subsidiaries for any reason.
"Work Product" has the meaning set forth in Section 3 of this
Agreement.
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 an employee and the
Chief Executive Officer and President of the Company under the
supervision and direction of the Board and shall have the normal
duties, responsibilities and
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authority of a Chief Executive Officer and President 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 of
for-profit entities other than the Board or the board of directors
of any Subsidiary of the Company, 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 Subsidiaries 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 $429,690 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)
hereof, the Executive shall be entitled to participate in the
following employee benefit programs, plans and policies
(collectively, the "Benefits"):
(A) The 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) that the Company, with the approval of the Board,
now or hereafter makes 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 its sole discretion;
(B) During calendar year 2002 and thereafter, the MIC
Plan or any New MIC Plan, with any awards thereunder to be set
by the Board at a level of no less than a 75% target bonus
(with the actual bonus ranging from 0% to 200% of such
target), it being understood and agreed that if
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the MIC Plan or a New MIC Plan is not in place during any
calendar year, the Executive will have substantially the same
bonus opportunities as existed under the MIC Plan or a New MIC
Plan during the prior calendar year;
(C) The Company's Leased Automobile Policy (including
without limitation payment or reimbursement of fuel expenses,
maintenance expenses and license tag fees); and
(D) The Company's Club Membership Policy (including
without limitation payment of an initiation fee and the
monthly fees of a country club located in Oklahoma of the
Executive's choice and payment of the monthly fees of a marina
club located in Oklahoma of the Executive's choice).
(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 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
three (3) years beginning as of the Effective Date and ending on the
third anniversary of the Effective Date (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
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"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.
(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 such
twelve-month period shall be extended until the date on which the
Initial Employment Term would have ended if more than twelve months
remained in the Initial Employment Term on the date of the
Employment Termination; provided, further, 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 referred to in
Section 2(c)(ii)(C) hereof 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
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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 release will not affect any contractual
rights the Executive may otherwise have under 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 the Company or
any of its 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
hereof, 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.
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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;
(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
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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, 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
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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) 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 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 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, 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).
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:
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To the Company:
Global Power Equipment Group Inc.
0000 Xxxxx Xxxx, Xxxxx 0000
Xxxxx, XX 00000
Attention: Secretary
Facsimile No.: (000) 000-0000
To the Executive:
at the Executive's last address or facsimile
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 the Company that he is not a party to any agreement containing a
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 Executive, the Company and/or any of
its Subsidiaries and supersedes and preempts any prior understandings,
agreements or representations by or among such parties, written or oral,
which may have related to the subject matter hereof in any way, including,
but not limited to, the Old Employment
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Agreement. This Agreement does not supersede any agreements evidencing the
grant of options to the Executive under the Company's 2000 Option Plan,
the Company's 2001 Option Plan or any future option plan of the Company.
(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 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. The Company and the Executive will be entitled to
enforce its or his 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 or his favor. The parties hereto
agree and acknowledge that 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 Executive and that the Company 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 the Company
(with the approval of the Board) and the Executive.
(i) Tax Matters. The Executive shall indemnify, defend and hold
harmless the Company and its Affiliates (and their respective officers,
directors, shareholders and employees) 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 the Predecessor Company, whether before or after the
merger of GEEG Acquisition, L.L.C. into the Predecessor Company, whether
acquired by purchase from any Subsidiary of the Company or otherwise, or
the holding by the Executive or his transferees of any such units of
interest in the Predecessor Company.
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Effective Date.
GLOBAL POWER EQUIPMENT GROUP INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President of Administration
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
14
EXHIBIT A
Benefits Schedule
Xxxxx X. Xxxxxxx
# 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
401(k) Plan
Preparation of Annual Taxes
