Exhibit 10.26
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT (this
“Agreement”) is dated as of December 16, 2004 (the
“Effective Date”), by and between Global Power
Equipment Group Inc., a Delaware corporation (the
“Company”), and Reynolds Alain Brousseau (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; and
WHEREAS, the Executive is entrusted
with knowledge of the particular business methods of the Company
and its Subsidiaries and is trained and instructed in the
particular operation methods of the Company and its Subsidiaries,
and the relationship between the Company and the Executive is one
in which the Company places special trust and confidence in the
Executive.
NOW, THEREFORE, in consideration of
employment and in further consideration of these mutual covenants
and agreements, the parties hereto, each intending to be bound,
covenant and agree as follows:
1. Definitions . As used
herein, the following terms shall have the following
meanings:
“Additional Employment
Term” has the meaning set forth in Section 2(d)(i) of this
Agreement.
“Affiliate” means, when
used with reference to a specified Person, any Person that directly
or indirectly controls or is controlled by or is under common
control with the specified Person. As used in this definition,
“control” (including, with its correlative meanings,
“controlled by” and “under common control
with”) shall mean possession, directly or indirectly, of
power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise). With respect to any
Person who is an individual, “Affiliates” shall also
include, without limitation, any member of such individual’s
Family Group.
“Base Salary” has the
meaning set forth in Section 2(c)(i) of this Agreement.
“Benefits” has the
meaning set forth in Section 2(c)(ii) of this Agreement.
“Board” means the
Company’s Board of Directors.
“Bonus” means awards
under the MIC Plan or a New MIC Plan.
“Bonus Year” means an
annual bonus period under the MIC Plan or a New MIC
Plan.
“Businesses” has the
meaning set forth in Section 5(a) of this Agreement.
“Cause” means the
occurrence of any one of the following as determined by the Board:
(i) a material breach of the Executive’s covenants under
Section 4 or Section 5 of this Agreement; (ii) the commission by
the Executive of a felony, or any crime involving theft, dishonesty
or moral turpitude; (iii) the commission by the Executive of act(s)
or omission(s) which are willful and deliberate acts intended to
harm or injure the business, operations, financial condition or
reputation of the Company or any Affiliate of the Company; (iv) the
Executive’s disregard of the directives of the Board; (v) the
Executive’s drunkenness or use of drugs which interferes with
the performance of the Executive’s duties under this
Agreement, which drunkenness or use of drugs continues after
receipt of notice to the Executive from the Company of his
violation of this provision; or (vi) any attempt by the Executive
to secure any personal profit in connection with the business of
the Company unless given prior written approval by unanimous
consent of the Board.
“Confidential
Information” has the meaning set forth in Section 4(a)(i) of
this Agreement.
“Disability” means the
inability, due to illness, accident, injury, physical or mental
incapacity or other disability, of the Executive to carry out
effectively his duties and obligations to the Company or to
participate effectively and actively in the management of the
Company for a period of at least 90 consecutive days or for shorter
periods aggregating at least 150 days (whether or not consecutive)
during any twelve-month period, as determined in the judgment of
the Board.
“Effective Date” 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
(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 Company’s and its
Subsidiaries’ Management Incentive Compensation Plan as in
effect on the date hereof which adversely affects the determination
of the Executive’s bonus with respect to the 2005 calendar
year or thereafter if such Management Incentive Compensation Plan
continues to be in effect for any calendar year after the 2005
calendar year unless such modification is generally applicable to
all participants in the such Management Incentive Compensation 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 MIC Plan or a New MIC Plan, which
modification adversely affects the determination of the
Executive’s bonus for any calendar year for which the MIC
Plan or such New MIC Plan is applicable, unless such modification
is generally applicable to all participants in the MIC Plan or such
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 and Chief Operating Officer
of the Company by action of the Board, or (vi) an assignment, by
action of the Board, to the Executive of any duties and
responsibilities that are substantially inconsistent with or
materially diminish the Executive’s position, in each case,
other than with the consent of the Executive.
“Initial Employment
Period” has the meaning set forth in Section 2(d)(i) of this
Agreement.
“Management Board
Member” means any member of the Board who is also a full-time
employee of the Company or any of its Subsidiaries.
“MIC Plan” means the
Company’s and its Subsidiaries’ Management Incentive
Compensation Plan for the 2005 calendar year and thereafter until a
New MIC Plan is approved and adopted.
“New MIC Plan” means the
Company’s and its Subsidiaries’ Management Incentive
Compensation Plan approved and adopted by the Board to be effective
for any calendar year after 2005.
“Noncompete Period” has
the meaning set forth in Section 5(a) 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 that the Executive ceases to be employed by the Company or
any of its Subsidiaries for any reason.
“Work Product” has the
meaning set forth in Section 3 of this Agreement.
2. Employment .
(a) Employment . The Company
agrees to employ the Executive, and the Executive hereby accepts
employment with the Company, upon the terms and conditions set
forth in this Agreement for the Employment Period (as herein
defined).
(b) Positions and Duties
.
(i) Commencing on the date hereof
and continuing during the Employment Period, the Executive shall
serve as an employee and the President and Chief Operating Officer
of the Company under the supervision and direction of the Board and
shall have the normal duties, responsibilities and authority of
President and Chief Operating Officer 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 $260,000 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 the Company, with the approval of the Board,
now or hereafter makes available generally to its management as
well as the employee benefits listed on Exhibit A hereto; provided
that any awards under any option plans shall be set by the Board,
in its sole discretion;
(B) During calendar year 2005 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; and
(C) The Company’s Club
Membership Policy (including without limitation payment of an
initiation fee and the monthly fees of a country club located in
Oklahoma of the Executive’s choice).
(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.
(iv) One-Time Payment . The
Company shall pay to the Executive the amount of $30,000 (less
customary withholdings) as consideration to Executive for entering
into this Agreement.
(v) Relocation Expenses . The
Company shall reimburse the Executive for the following expenses
incurred by the Executive in connection with the relocation of the
Executive and his family to Tulsa, Oklahoma, subject to the
Company’s receipt of supporting documentation in accordance
with the Company’s customary reporting and documentation
provisions: (A) moving expenses (limited to the lower of two bids
obtained by the Executive from licensed household moving firms),
(B) reasonable expenses for transportation, meals and lodging for
up to seven days
