Exhibit 10.1
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT (this
“Agreement”) is dated as of
, 20 (the “Effective
Date”), by and between Global Power Equipment Group Inc., a
Delaware corporation (the “Company”), and
(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
, between the 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 that
the Executive is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than twelve
(12) months, or is, by reason of any medically determinable
physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not
less than twelve (12) months, receiving income replacement
benefits for a period of not less than three (3) months under
an accident and health plan covering employees of the
Company.
“Effective Date” has the
meaning set forth in the opening paragraph of this
Agreement.
“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
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(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 material reduction in the annual base salary of the
Executive, a material reduction in the employee benefits granted to
the Executive, or a material reduction in the Executive’s
percentage participation in the MIC Plan prior to the approval and
adoption of a New MIC Plan or a material 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 modification to
the MIC Plan as in effect on the date hereof which materially and
adversely affects the determination of the Executive’s bonus
with respect to the 20 calendar
year or thereafter if the MIC Plan continues to be in effect for
any calendar year after the 20
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
modification to a New MIC Plan, which modification materially and
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
,
, or (v) a removal of the Executive as
[and
] of the Company by action of the Board, 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 Program for the 20
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 Program or Plan approved and adopted by the Board to
be effective for any calendar year after 20__.
“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.
“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 of the Executive’s separation of service from the
Company or any of its Subsidiaries for reasons other than death, as
determined under Section 409A of the Code and applicable
guidance thereunder; provided, however, that in the event such
determination cannot be made under such Section 409A and/or
guidance, “Termination Date” shall mean the date that
the Executive ceases to be employed by the Company or any of its
Subsidiaries for any reason other than death.
“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).
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(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
[and
] of the Company under the supervision and direction of the Board
and shall have the normal duties, responsibilities and authority of
a
[and
] 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 one board of a for-profit entity
other than the Board or the board of directors of any Subsidiary of
the Company, provided that such activity does 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 $
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;
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(B) During calendar year 20
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
% target bonus (with the actual bonus ranging from
% to
%), 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; and
(C) The Company’s Club
Membership Policy (which, subject to certain limitations, provides
for payment of an initiation fee and monthly fees).
(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
