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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:
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"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 .
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(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"):
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(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 the Company’s receipt of
supporting documentation in accordance with the Company’s
customary reporting and documentation provisions.
(d) Term .
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