Exhibit 10.15
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is dated as of May 1, 2002
(the "Effective Date"), by and among Global Power Equipment Group Inc., a
Delaware corporation ("Holdings"), Xxxxxx Manufacturing, L.L.C., a Delaware
limited liability company (the "Company"), and Xxxx X. Xxxxxxxxxxxx (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, 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 Effective Date, which agreement shall supersede the Executive's
current Employment Agreement, dated as of August 1, 2000, among Holdings (as
successor by merger to GEEG Holdings, L.L.C., a Delaware limited liability
company (the "Predecessor Company")), the Company and the Executive (the "Old
Employment Agreement"); and
WHEREAS, the Company is a wholly owned subsidiary of Holdings; and
WHEREAS, the Executive is entrusted with knowledge of the particular
business methods of Holdings and the Company and is trained and instructed in
the particular operation methods of Holdings and the Company, and the
relationship among Holdings, the Company and the Executive is one in which
Holdings and 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 Holdings' 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 Holdings or the Company or any Affiliate of Holdings or
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
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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.
"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 President of the Company or as a Senior Vice President
of Holdings 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 Holdings or any of its Subsidiaries.
"MIC Plan" means Holdings' 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 Holdings' and its Subsidiaries'
Management Incentive Compensation Plan approved and adopted by the
Board to be effective for any calendar year after 2002.
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"Noncompete Period" has the meaning set forth in Section 5(a)
of this Agreement.
"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 Holdings 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.
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(i) Commencing on the date hereof and continuing
during the Employment Period, the Executive shall serve as an
employee and the President of the Company under the
supervision and direction of the Board and shall have the
normal duties, responsibilities and authority of a President
of a corporation and such other duties as shall be assigned to
the Executive by the Board from time to time. In addition, the
Executive shall serve as a Senior Vice President of Holdings
under the supervision and direction of the Board and shall
have the normal duties, responsibilities, and authority of a
Senior Vice President of a corporation.
(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
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 Holdings or the Company. In addition, the Executive shall
comply with all laws, rules and regulations that are generally
applicable to Holdings, 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 $210,000
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
Holdings and the Company, with the approval of the
Board, now or hereafter makes available generally to
its management as well as the employee benefits
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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 55% target bonus (with the
actual bonus ranging from 0% to 200% of such target),
it being understood and agreed that if 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) Holdings' Leased Automobile Policy
(including without limitation payment or
reimbursement of fuel expenses, maintenance expenses
and license tag fees); and
(D) Holdings' Club Membership Policy
(including without limitation payment of the monthly
fees of a dinner 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 two (2) years beginning as of the Effective Date and
ending on the second 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
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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.
(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
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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 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 Holdings 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 Holdings 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
Holdings or 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 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 Holdings' 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 Holdings or any of its Subsidiaries ("Work Product") shall be
the sole and exclusive property of Holdings or any such Subsidiary. The
Executive will promptly disclose such Work Product to Holdings and perform all
actions requested by Holdings (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 Holdings or any of its Subsidiaries concerning the
business or affairs of Holdings or any such Subsidiary
(including without limitation Holdings' and its Subsidiaries'
technology, methods of doing business and supplier and
customer information) (collectively, "Confidential
Information") are highly confidential and uniquely valuable to
Holdings and its Subsidiaries;
(ii) That such Confidential Information is and shall
continue to be the property of Holdings or any such
Subsidiary;
(iii) That Holdings 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 Holdings and its
Subsidiaries depends in large part on keeping the Confidential
Information from becoming known to competitors of Holdings and
its Subsidiaries; and
(v) That Holdings 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 Holdings, 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 Holdings 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
Holdings all computer equipment or backup files of or relating
to Holdings 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
Holdings or any of its Subsidiaries which he may then possess
or have under his control. If Holdings requests, the Executive
(or his representative) agrees to provide written confirmation
that the Executive has returned all such materials to Holdings
or one of its Subsidiaries; and
(iv) That upon the Employment Termination or at any
other time Holdings 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 Holdings 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 Holdings 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 Holdings.
5. Noncompete, Nonsolicitation.
(a) The Executive agrees that, during the time he is employed
by Holdings 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 Holdings 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 Holdings 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.
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(b) During the Noncompete Period, the Executive shall not
directly or indirectly through another entity (i) induce or attempt to
induce any employee of Holdings or any of its Subsidiaries to leave the
employ of Holdings or any such Subsidiary, or in any way interfere with
the relationship between Holdings 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 Holdings or any of its Subsidiaries, (ii)
hire any person who was an employee of Holdings 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 Holdings or any of
its Subsidiaries to cease doing business with Holdings or any such
Subsidiary, or in any way interfere with the relationship between any
such customer, supplier, distributor, franchisee, licensee or business
relation and Holdings 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).
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 Holdings or 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 Holdings and 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 Holdings or 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
Holdings 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, Holdings
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 Holdings' 2000 Option Plan,
Holdings' 2001 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 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 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 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) and the Executive.
(i) Tax Matters. The Executive shall indemnify, defend and
hold harmless Holdings 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 Holdings 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 Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: President and Chief Executive Officer
XXXXXX MANUFACTURING, L.L.C.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
/s/ Xxxx X. Xxxxxxxxxxxx
---------------------------------------------
Xxxx X. Xxxxxxxxxxxx
14
EXHIBIT A
Benefits Schedule
Xxxx X. Xxxxxxxxxxxx
# Medical Insurance
# Dental Insurance
Short Term Disability
Long Term Disability
Salary Continuation
# Life Insurance
Accidental Death & Dismemberment
# Travel Accident Insurance
9 Paid Holidays Per Year
4 Weeks Paid Vacation Per Year
401(k) Plan
Preparation of Annual Taxes
