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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is dated as of August 1, 2000, by and among
GEEG Holdings, L.L.C., a Delaware limited liability company ("Holdings"), Xxxxxx
Manufacturing, L.L.C., a Delaware limited liability company (the "Company"), and
Xxxx X. Xxxxxxxxxxxx (the "Executive"). Capitalized terms used but not otherwise
defined herein shall have the meaning assigned to such terms in Section 1.
WHEREAS, Holdings, directly or indirectly, owns all of the issued and
outstanding membership interests of the Company;
WHEREAS, Holdings, SMC Power Holdings LLC, GEEG Acquisition Holdings
Corp., and GEEG Acquisition, L.L.C. entered into an Agreement and Plan of Merger
(the "Merger Agreement") dated July 14, 2000, whereby GEEG Acquisition, L.L.C.
will be merged with and into Holdings (the "Merger");
WHEREAS, Holdings, the Company and the Executive desire to enter into
an agreement regarding the employment by the Company of the Executive effective
as of the Closing Date of the Merger (as defined in the Merger Agreement) which
agreement shall supersede the Executive's current Employment Agreement, dated
June 8, 1998, between Holdings, the Company and the Executive (the "Old
Employment Agreement") and the other agreements described herein;
WHEREAS, the Executive is entrusted with knowledge of the Company's
particular business methods and is trained and instructed in the Company's
particular operation methods and the relationship between the Company and the
Executive is one in which the Company places special trust and confidence in the
Executive; and
WHEREAS, as of the date hereof, the Executive has entered into a
Repurchase Agreement (the "Repurchase Agreement") pursuant to which Holdings has
issued to the Executive a number of Holdings' Preferred Units and Class A Common
Units (collectively, the "Purchased Units").
NOW, THEREFORE, in consideration of employment and in further
consideration of these mutual covenants and agreements, the parties hereto, each
intending to be bound, covenant and agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings:
"Affiliate" means, when used with reference to a specified
Person, any Person that directly or indirectly controls or is controlled by or
is under common control with the specified Person. As used in this definition,
"control" (including, with its correlative meanings, "controlled by" and "under
common control with") shall mean possession, directly or indirectly, of power to
direct or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by contract
or otherwise). With respect to any
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Person who is an individual, "Affiliates" shall also include, without
limitation, any member of such individual's Family Group.
"Benefits" has the meaning set forth in Section 2(c)(ii).
"Board" means Holdings' Board of Directors.
"Bonus" means awards under the MIC Plan or the New MIC Plan.
"Bonus Year" means an annual bonus period under the MIC Plan
or the New MIC Plan.
"Cause" means the occurrence of any one of the following as
determined by the Board: (i) a material breach of the Executive's covenants
under Section 4 or Section 5 of this Agreement; (ii) the commission by the
Executive of a felony, or any crime involving theft, dishonesty or moral
turpitude; (iii) the commission by the Executive of act(s) or omission(s) which
are willful and deliberate acts intended to harm or injure the business,
operations, financial condition or reputation of the Company, Holdings, any of
Holdings' equity holders, or any Affiliate of any of the foregoing; (iv) the
Executive's disregard of the directives of the Board; (v) the Executive's
drunkenness or use of drugs which interferes with the performance of the
Executive's duties under this Agreement, which drunkenness or use of drugs
continues after receipt of notice to the Executive from the Company of his
violation of this provision; or (vi) any attempt by the Executive to secure any
personal profit in connection with the business of the Company unless given
prior written approval by unanimous consent of the Board.
"Confidential Information" has the meaning set forth in
Section 4(a)(i).
"Disability" means the inability, due to illness, accident,
injury, physical or mental incapacity or other disability, of the Executive to
carry out effectively his duties and obligations to the Company or to
participate effectively and actively in the management of the Company for a
period of at least 90 consecutive days or for shorter periods aggregating at
least 150 days (whether or not consecutive) during any twelve-month period, as
determined in the judgment of the Board.
"Family Group" means, with respect to any Person who is an
individual: (i) such Person's spouse, former spouse and descendants (whether
natural or adopted), parents and their descendants and any spouse of the
foregoing persons (collectively, "relatives") or (ii) the trustee, fiduciary or
personal representative of such Person and any trust solely for the benefit of
such Person and/or such Person's relatives.
"Good Reason" for resignation by the Executive means his
resignation because of: (i) a reduction in the annual base salary of the
Executive, a material reduction in the employee benefits granted to the
Executive, or a reduction in the Executive's percentage participation in the MIC
Plan prior to the approval and adoption of a New MIC Plan (as defined below) or
a reduction in the Executive's percentage participation in any New MIC Plan from
the percentage awarded to the Executive if and when a New MIC Plan is approved
and adopted as contemplated in clause (iii) below, (ii) a material modification
to the MIC Plan as in effect on the date hereof
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which adversely affects the determination of the Executive's bonus with respect
to the 2000 calendar year or thereafter if the MIC Plan continues to be in
effect for any calendar year after the 2000 calendar year unless such
modification is generally applicable to all participants in the MIC Plan and
such modification has been approved by (x) if the Board has less than three
Management Board Members, then all such Management Board Members or (y) if the
Board has three or more Management Board Members, then any two of such
Management Board Members, (iii) a material modification to the new Management
Incentive Plan which is agreed upon by the Board and the Company's Chief
Executive Officer and approved by the Board for years beginning after calendar
year 2000 (the "New MIC Plan"), as such New MIC Plan is in effect on the date of
such Board approval, which modification adversely affects the determination of
the Executive's bonus for any calendar year for which such New MIC Plan is
applicable, unless such modification is generally applicable to all participants
in the New MIC Plan and such modification has been approved by (x) if the Board
has less than three Management Board Members, then all such Management Board
Members or (y) if the Board has three or more Management Board Members, then any
two of such Management Board Members, (iv) a requirement that the Executive be
based at any office or location more than 50 miles from Tulsa Oklahoma, (v) a
removal of the Executive as 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.
"Management Board Member" means any member of the Board who is
also a full-time employee of Holdings or any of its Subsidiaries.
"MIC Plan" means Holdings' and its Subsidiaries' Management
Incentive Compensation Plan for the 2000 calendar year.
"New MIC Plan" means Holdings' and its Subsidiaries'
Management Incentive Compensation Plan agreed upon by the Board and the
Company's Chief Executive Officer, effective January 1, 2001 or thereafter.
"Old Employment Agreement" has the meaning set forth in the
third WHEREAS clause.
"Operating Agreement" means the Limited Liability Company
Agreement of Holdings, dated as of August 1, 2000, as amended from time to time.
"Person" means an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a trust, a
joint venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company, association or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors thereof is at the time owned
or controlled, directly or indirectly, by that Person or one or more of the
other Subsidiaries of that Person or a combination thereof, or (ii) if a
partnership, limited liability company, association or other
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business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a partnership, limited liability company, association or
other business entity if such Person or Persons shall be allocated a majority of
partnership, limited liability company, association or other business entity
gains or losses or shall be or control the managing director, manager or a
general partner of such partnership, limited liability company, association or
other business entity.
"Termination Date" means the date that the Executive ceases to
be employed by Holdings or any of its Subsidiaries for any reason.
2. Employment. (a) Employment. The Company agrees to employ the
Executive, and the Executive hereby accepts employment with the Company, upon
the terms and conditions set forth in this Agreement for the Employment Period
(as herein defined).
(b) Positions and Duties. (i) Commencing on the date hereof
and continuing during the Employment Period, the Executive shall serve as
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.
(ii) The Executive shall devote his best efforts and
his full business time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity which does not constitute
Disability) to the business and affairs of the Company. The Executive shall
perform his duties and responsibilities to the best of his abilities in a
diligent, trustworthy, businesslike and efficient manner. The foregoing shall
not preclude the Executive from devoting reasonable time to civic and charitable
affairs and with the consent of the Board serving on a maximum of two boards
other than the Board or the board of directors of any Subsidiary of Holdings,
provided that such activities do not interfere in any material respect with the
performance of his duties hereunder. The Executive shall perform all services in
accordance with the policies, procedures and rules established by the Company.
In addition, the Executive shall comply with all laws, rules and regulations
that are generally applicable to the Company, its Affiliates and their
employees, directors and officers.
(c) Base Salary and Benefits. (i) Base Salary. During the
Employment Period, the Executive's base salary shall be in an amount set by the
Board, but under no circumstances will be less than $157,000 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), the Executive shall be entitled to participate in the Company's
employee benefit programs (including, but not limited to, option
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plans and benefit programs which provide group pension, life and health
insurance and other medical benefits), as the Company, with the approval of the
Board, may now or hereafter make available generally to its management as well
as the employee benefits listed on Exhibit A hereto; provided that any awards
under any option plans shall be set by the Board, in their sole discretion. In
addition, during calendar year 2000, the Executive shall be entitled to
participate at a level of no less than 80% in the MIC Plan, with any awards
under the MIC Plan to be set by the Board, and the calculation of the bonus
under the MIC Plan for the calendar year 2000 will be made as though the
transactions described in the Merger Agreement had not occurred. Effective
January 1, 2001, the MIC Plan will be replaced by the New MIC Plan which shall
be mutually agreed upon by the Board and the Company's Chief Executive Officer.
If a New MIC Plan is not agreed upon by the Board and the Company's Chief
Executive Officer, the Executive will have substantially the same bonus
opportunities as existed under the MIC Plan prior to the date hereof, taking
into account the new capital structure of the Company and its Affiliates. All
benefits the Executive shall be entitled to pursuant to this Section 2(c)(ii)
shall hereinafter be referred to as the "Benefits."
(iii) Expenses. The Company shall reimburse the
Executive for all reasonable and necessary business expenses incurred by the
Executive in performing his duties under this Agreement which are consistent
with the Company's policies, as approved by the Board, in effect from time to
time with respect to travel, entertainment and other business expenses subject
to the Company's receipt of supporting documentation in accordance with the
Company's customary reporting and documentation provisions.
(d) Term. (i) This Agreement is an employment contract for a
term of two (2) years beginning as of the date of the Closing Date of the Merger
and ending on the second anniversary of the date thereof (the "Initial
Employment Term"). At the end of the Initial Employment Term, and at the end of
each Additional Employment Term (as herein defined), unless the Company (with
the approval of the Board) has provided the Executive with at least sixty (60)
days advance written notice, so long as the Executive continues to be employed
by the Company, this employment contract shall automatically renew for a term of
one (1) year (each such additional term, an "Additional Employment Term"). The
Initial Employment Term and each Additional Employment Term shall be referred to
herein as an "Employment Term." Notwithstanding the foregoing, each Employment
Term is subject to early termination (x) by reason of the Executive's death or
Disability, (y) by resolution of the Board with or without Cause, or (z) upon
the Executive's voluntary resignation with or without Good Reason. For all
purposes under this Agreement, a delivery of a notice by the Company to the
Executive pursuant to this Section 2(d)(i) to avoid an Additional Employment
Term shall be treated as if an Employment Term has been terminated early by
resolution of the Board without Cause.
(ii) The period of the Initial Employment Term
together with each Additional Employment Term, if any, shall be referred to
herein as the "Employment Period." Notwithstanding any termination of the
Executive's employment by the Company (such termination, an "Employment
Termination"), this Agreement shall remain a valid and enforceable contract
between the parties, including without limitation Sections 3, 4 and 5 hereof.
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(e) Employment Termination. (i) If any Employment Term is
terminated early by resolution of the Board with Cause or by reason of the
Executive's voluntary resignation without Good Reason, then the Executive shall
be entitled to receive only all previously earned and accrued but unpaid Base
Salary and vacation time up to the date of the Employment Termination (and not
any accrued but unpaid Bonus as of the date of the Employment Termination).
(ii) If any Employment Term is terminated early by
reason of the Executive's death or Disability, then the Executive shall be
entitled to receive only (x) all previously earned and accrued but unpaid Base
Salary and vacation time up to the date of the Employment Termination, (y) if
the date of the Employment Termination is 3 months after the commencement of a
Bonus Year, then a portion of the Bonus earned by the Executive during such
Bonus Year in which such termination occurs determined on a pro rated basis
based on the number of days of the applicable Bonus Year prior to the date of
the Employment Termination as compared to the number of days in such Bonus Year,
which payment will be made when such Bonus for such Bonus Year would otherwise
be payable and (z) any Bonus earned by the Executive during any Bonus Year which
ended prior to the date of the Employment Termination and which has not been
paid as of such date, which payment will be made when such Bonus for such Bonus
Year would otherwise be payable.
(iii) If any Employment Term is terminated early by
reason of the Executive's voluntary resignation with Good Reason or by
resolution of the Board without Cause, then, subject to the last sentence of
this section (iii), the Executive shall be entitled to receive only the
following: (v) all previously earned and accrued but unpaid Base Salary and
vacation time up to the date of the Employment Termination, (w) his Base Salary
and the Benefits marked on Exhibit A with an "#" for the twelve-month period
beginning on the date of the Employment Termination; provided, however, that in
lieu of providing such benefits, the Company may elect to pay to the Executive
the cost of premiums for such benefits, (x) the Benefits marked on Exhibit A
with a "+" for the three-month period beginning on the date of the Employment
Termination, (y) if the date of the Employment Termination is 3 months after the
commencement of a Bonus Year, then a portion of the Bonus earned by the
Executive during such Bonus Year in which such termination occurs determined on
a pro rated basis based on the number of days of the applicable Bonus Year prior
to the date of the Employment Termination as compared to the number of days in
such Bonus Year, which payment will be made when such Bonus for such Bonus Year
would otherwise be payable and (z) any Bonus earned by the Executive during any
Bonus Year which ended prior to the date of the Employment Termination and which
has not been paid as of such date, which payment will be made when such Bonus
for such Bonus Year would otherwise be payable. Notwithstanding these payments
or benefits, the period for which the Executive is entitled to health care
continuation coverage under Section 4980B of the Internal Revenue Code of 1986,
as amended, shall begin to run on the date of the Executive's termination. As a
condition to receiving any payments pursuant to this section 2(e)(iii), the
Executive shall execute and deliver to the Company a general release (with
ancillary covenants not to xxx and other similar standard provisions) of the
Company and its Affiliates and their respective officers, directors and
employees from all claims of any kind whatsoever arising out of the Executive's
employment or termination thereof (including without limitation, civil rights
claims), in such form as reasonably requested by the Company; provided, however,
that the
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release will not affect any contractual rights the Executive may otherwise have
under the Repurchase Agreement or any stock option plans of the Company or
option agreements thereunder; and provided further that the release shall not
apply to any rights to which the Executive is entitled in accordance with plan
provisions under any employee benefit plan or fringe benefit plan or program of
the Company and its Affiliates.
(iv) Except as expressly provided in this Section
2(e), the Executive hereby agrees that upon and after the Employment
Termination, no severance compensation of any kind, nature or amount (including
by operation of law) shall be payable by Holdings, the Company or any of their
respective Subsidiaries or Affiliates to the Executive and the Executive hereby
irrevocably waives any claim for severance compensation of any kind, nature or
amount (including by operation of law).
(v) Except as expressly provided in this Section
2(e), upon the Employment Termination, except as required by law, all of the
Executive's rights to Benefits hereunder (if any) shall cease.
(vi) Subject to restrictive covenants contained in
Section 5, the Executive may obtain other engagements or employment after the
date of an Employment Termination, and any compensation received or receivable
by the Executive shall not reduce any amounts which the Company is required to
pay to the Executive pursuant to this Agreement.
3. Work Product. The Executive agrees that all inventions, drawings,
improvements, developments, methods, processes, programs, designs and all
similar or related information which relates to the Company's or any of its
Subsidiaries' actual or anticipated business or research and development or
existing or future products or services and which are conceived, developed,
contributed to or made by the Executive (either solely or jointly with others)
while employed by the Company or any of its Subsidiaries ("Work Product") shall
be the sole and exclusive property of the Company or any such Subsidiary. The
Executive will promptly disclose such Work Product to the Company and perform
all actions requested by the Company (whether during or after employment) to
establish and confirm such ownership (including, without limitation,
assignments, consents, powers of attorney and other instruments).
4. Confidential Information. (a) The Executive acknowledges: (i) That
the Work Product, artificial intelligence systems, information, customer lists,
goodwill, observations and data disclosed to, developed by or obtained by him
while employed by the Company or any of its Subsidiaries concerning the business
or affairs of the Company or any such Subsidiary (including without limitation
the Company's and its Subsidiaries' technology, methods of doing business and
supplier and customer information) (collectively, "Confidential Information")
are highly confidential and uniquely valuable to the Company and its
Subsidiaries;
(ii) That such Confidential Information is and shall
continue to be the property of the Company or any such Subsidiary;
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(iii) That the Company and each of its Subsidiaries
has a proprietary interest in their respective Confidential Information,
including without limitation the identity of their respective customers and
suppliers, solicited customers, customer and supplier lists;
(iv) That the continued success of the Company and
its Subsidiaries depends in large part on keeping the Confidential Information
from becoming known to competitors of the Company and its Subsidiaries; and
(v) That the Company and its Subsidiaries will be
irreparably harmed by disclosure of any Confidential Information.
(b) Therefore, the Executive agrees: (i) That, during his
employment and for all times thereafter, except as required by law or court
order, he shall not directly or indirectly disclose to any unauthorized person
or use for his own account any Confidential Information without the prior
written consent of the Company, unless and to the extent that the aforementioned
matters become generally known to and available for use by the public other than
as a result of the Executive's acts or omissions to act;
(ii) To use his best efforts and diligence to
safeguard the Confidential Information and to protect it against disclosure,
misuse, espionage, loss or theft;
(iii) That upon the Employment Termination or at any
other time the Company may request, for whatever reason, the Executive shall
deliver (and in the event of the Executive's death or Disability, his
representative shall deliver) to the Company all computer equipment or backup
files of or relating to the Company and its Subsidiaries, all memoranda,
correspondence, customer data, notes, plans, records, reports, manuals,
photographs, computer tapes and software and other documents and data (and
copies thereof) relating to the Confidential Information, the Work Product or
the business of the Company or any of its Subsidiaries which he may then possess
or have under his control. If the Company requests, the Executive (or his
representative) agrees to provide written confirmation that the Executive has
returned all such materials to the Company or one of its Subsidiaries; and
(iv) That upon the Employment Termination or at any
other time the Company may request, for whatever reason, the Executive shall
assign all rights, title and interest in the Confidential Information, the Work
Product, all computer equipment or backup files of or relating to the Company or
any of its Subsidiaries, all memoranda, correspondence, customer data, notes,
plans, records, reports, manuals, photographs, computer tapes and software and
other documents and data (and copies thereof) relating to the Confidential
Information, the Work Product or the business of the Company or any of its
Subsidiaries which the Executive may then possess, has under his control, or has
ever developed, obtained, or contributed to during his tenure with the Company.
5. Noncompete, Nonsolicitation. (a) The Executive agrees that, during
the time he is employed by the Company or any of its Subsidiaries and during any
applicable Post-Termination Period (as herein defined) (the "Noncompete
Period"), he shall not directly or indirectly own, operate, manage, control,
participate in, consult with, advise, provide services for,
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or in any manner engage in any business (including by himself or in association
with any person, firm, corporate or other business organization or through any
other entity) in competition with, or potential competition with, the businesses
of the Company or any of its Subsidiaries as such businesses (the "Businesses")
exist during the Executive's employment by the Company, within the United States
or any other geographical area in which the Company or any of its Subsidiaries
engages or plans to engage in the Businesses (the "Geographical Area"). Nothing
herein shall prohibit the Executive from being a passive owner of not more than
2% of the outstanding stock of a corporation which is publicly traded, so long
as the Executive has no active participation in the business of such
corporation. For purposes of this Section 5, "Post-Termination Period" means the
twelve (12) month period beginning on the Termination Date.
(b) During the Noncompete Period, the Executive shall not
directly or indirectly through another entity (i) induce or attempt to induce
any employee of the Company or any of its Subsidiaries to leave the employ of
the Company or any such Subsidiary, or in any way interfere with the
relationship between the Company or any of its Subsidiaries and any employee
thereof, including without limitation, inducing or attempting to induce any
union, employee or group of employees to interfere with the business or
operations of the Company or any of its Subsidiaries, (ii) hire any person who
was an employee of the Company or any of its Subsidiaries at any time during the
Executive's employment period, or (iii) induce or attempt to induce any
customer, supplier, distributor, franchisee, licensee or other business relation
of the Company or any of its Subsidiaries to cease doing business with the
Company or any such Subsidiary, or in any way interfere with the relationship
between any such customer, supplier, distributor, franchisee, licensee or
business relation and the Company or any of its Subsidiaries.
(c) The Executive agrees that: (i) the covenants set forth in
this Section 5 are reasonable in geographical and temporal scope and in all
other respects, (ii) Holdings and the Company would not have entered into this
Agreement but for the covenants of the Executive contained herein, and (iii) the
covenants contained herein have been made in order to induce Holdings and the
Company to enter into this Agreement.
(d) If, at the time of enforcement of this Section 5, a court
shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law.
(e) The Executive recognizes and affirms that in the event of
his breach of any provision of this Section 5, money damages would be inadequate
and Holdings and the Company would have no adequate remedy at law. Accordingly,
the Executive agrees that in the event of a breach or a threatened breach by the
Executive of any of the provisions of this Section 5, Holdings and the Company,
in addition and supplementary to other rights and remedies existing in its
favor, may apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive or other relief in order to enforce or
prevent any violations of the provisions hereof (without posting a bond or other
security).
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6. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and delivered personally, mailed by certified or registered mail, return
receipt requested and postage prepaid, sent via a nationally recognized
overnight courier, charges prepaid, or sent via facsimile. Such notices, demands
and other communications will be sent to the address indicated below:
To Holdings or the Company:
GEEG Holdings, L.L.C.
0000 Xxxxx Xxxx, Xxxxx 0000
Xxxxx, XX 00000
Attention: Secretary
Telecopy No.: (000) 000-0000
With a copy, which shall not constitute notice, to:
Harvest Partners, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telecopy No.: (000) 000-0000
and
Xxxx X. Xxxxx
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
To the Executive:
at the Executive's last address or
telecopy number on the records of the
Company
or such other address or to the attention of such other Person as the recipient
party shall have specified by prior written notice to the sending party;
provided, that the failure to deliver copies of notices as indicated above shall
not affect the validity of any notice. Any such notice, demand or other
communication shall be deemed to have been received (i) when delivered, if
personally delivered, or sent by nationally-recognized overnight courier or sent
via facsimile or (ii) on the third business day following the date on which the
piece of mail containing such notice, demand or other communication is posted if
sent by certified or registered mail.
7. Miscellaneous. (a) Warranty by the Executive. The Executive
represents and warrants to Holdings and the Company that he is not a party to
any agreement containing a
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noncompetition provision or other restriction with respect to (i) the nature of
any services or business which he is entitled to perform or conduct for the
Company under this Agreement, or (ii) the disclosure or use of any information
which directly or indirectly relates to the nature of the business of the
Company or any of its Subsidiaries or the services to be rendered by the
Executive under this Agreement.
(b) Severability. If any provision or clause of this
Agreement, or portion thereof shall be held by any court or other tribunal of
competent jurisdiction to be illegal, invalid, or unenforceable in such
jurisdiction, the remainder of such provision shall not be thereby affected and
shall be given full effect, without regard to the invalid portion. It is the
intention of the parties that, if any court construes any provision or clause of
this Agreement, or any portion thereof, to be illegal, void or unenforceable
because of the duration of such provision or the area matter covered thereby,
such court shall reduce the duration, area, or matter of such provision, and, in
its reduced form, such provision shall then be enforceable and shall be
enforced.
(c) Complete Agreement. This Agreement shall embody the
complete agreement and understanding among the parties and supersede and preempt
any prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way,
including, but not limited to, the Term Sheet between GEEG Acquisition, L.L.C.
and the Executive Relating to the Term of Employment and Equity Compensation,
dated July 12, 2000, the Old Employment Agreement, the Agreements evidencing the
grant of Performance Vesting Options and Time Vesting Options to the Executive
under the Holdings' 1998 Option Plan, and the Employee Subscription Agreements,
dated June 8, 1998 and December 18, 1998, between Holdings and the Executive.
This Agreement does not supersede the Repurchase Agreement between Holdings and
the Executive which is being executed concurrently herewith, or any future
agreements evidencing the grant of options to the Executive under Holdings' 2000
Option Plan, or any future option plan of Holdings.
(d) Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(e) Successors and Assigns, Transfer. This Agreement is
intended to bind and inure to the benefit of and be enforceable by the
Executive, Holdings and the Company and their respective successors, heirs and
assigns.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of Delaware, without giving
effect to any rules, principles or provisions of choice of law or conflict of
laws.
(g) Remedies. Holdings, the Company and the Executive will be
entitled to enforce its respective rights under this Agreement specifically, to
recover damages and costs (including reasonable attorneys' fees and expenses)
caused by any breach of any provision of this Agreement and to exercise all
other rights existing in its favor. The parties hereto agree and acknowledge
that Holdings and the Company will suffer irreparable harm and money damages may
not be an adequate remedy for any breach of the provisions of this Agreement by
the
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Executive and that any such party may in its sole discretion apply to any court
of law or equity of competent jurisdiction (without posting any bond or deposit)
for specific performance and/or other injunctive relief in order to enforce or
prevent any violations of the provisions of this Agreement.
(h) Amendment and Waiver. The provisions of this Agreement may
be amended and waived only with the prior written consent of Holdings (with the
approval of the Board), the Company and the Executive.
(i) Tax Matters. (i) The Executive shall indemnify, defend and
hold harmless Holdings and the Company (and their respective officers,
directors, employees and members) for any liability associated with federal,
state or local income tax withholding and employment tax withholding in respect
of the Executive or his transferees (including all interest, penalties and
additions to tax with respect thereto) resulting from, or arising with respect
to, the issuance to the Executive of any units of interest in Holdings, whether
before or after the Merger, whether acquired by purchase from the Company or
otherwise, or the holding by the Executive or his transferees of any such units
of interest in Holdings.
(ii) The Executive hereby irrevocably waives any and all
claims, rights and recourse under Section 10(j) of the Old Employment Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Employment Agreement as of the date first written above.
GEEG HOLDINGS, L.L.C.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name:
Title:
XXXXXX MANUFACTURING, L.L.C.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name:
Title:
/s/ Xxxx X. Xxxxxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxxxxx
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Exhibit A
Benefits Schedule
Xxxx X. Xxxxxxxxxxxx
+ Company Paid Vehicle
Summit Club Membership
+ Cellular Phone
+ Company Gas Card
+ Vehicle Maintenance
+ Vehicle Tags
# 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
MIC Bonus Plan at 80% Level
401(k) Plan
