Exhibit 10.1
EXECUTION VERSION
LIMITED WAIVER AND SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS LIMITED WAIVER AND SIXTH AMENDMENT TO CREDIT AGREEMENT (this “
Limited Waiver
”), dated as of June 30, 2015, is among GLOBAL POWER EQUIPMENT GROUP INC., a Delaware corporation (the “
Borrower
”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent for the Lenders, Swingline Lender and Issuing Lender (the “
Administrative Agent
”), and the LENDERS (as defined in the Credit Agreement defined below) signing this Limited Waiver.
BACKGROUND
A.
The Borrower, the Lenders and the Administrative Agent are parties to that certain Credit Agreement, dated as of February 21, 2012, as amended by that certain First Amendment to Credit Agreement and First Amendment to Security Agreement, dated as of April 25, 2012, that certain Second Amendment to Credit Agreement dated as of July 19, 2012, that certain Third Amendment and Limited Waiver to Credit Agreement and Second Amendment to Security Agreement, dated as of March 4, 2013, but effective as of December 7, 2012, that certain Lender Joinder Agreement, effective as of December 17, 2013, that certain Fourth Amendment and Limited Waiver to Credit Agreement, dated as of December 22, 2014 and that certain Fifth Amendment and Limited Waiver to Credit Agreement, dated as of May 28, 2015 (as amended, the “
Credit Agreement
”). The terms defined in the Credit Agreement and not otherwise defined herein shall be used herein as defined in the Credit Agreement.
B.
The Borrower has informed the Administrative Agent and the Lenders that (i) the previously delivered audited financial statements for the Fiscal Year ending December 31, 2014 and accompanying Officer’s Compliance Certificate were incorrect, (ii) the representations set forth in
Section 6.26
of the Credit Agreement regarding such financial statements and accompanying Officer’s Compliance Certificate were incorrect each time such representations were made and (iii) as a result of such incorrect financial statements, the Borrower has failed to keep proper books, records and accounts in accordance with
Section 7.7
of the Credit Agreement. The failure to keep proper books, records and accounts and the delivery of incorrect financial statements for the Fiscal Year ending December 31, 2014, together with an inaccurate Officer’s Compliance Certificate constitute a breach of
Sections 6.26
,
7.1(a)
,
7.2(a)
and
7.7
of the Credit Agreement, and constitute Events of Default under
Sections 9.1(c), (d)
and
(e)
of the Credit Agreement (collectively, the “
Existing Events of Default
”).
C.
In connection with the Fifth Amendment and Limited Waiver to Credit Agreement, dated as of May 28, 2015, the Required Lenders agreed to waive the Existing Events of Default and consented to an extension of time until June 30, 2015 for the delivery of (i) the restated audited financial statements for the Fiscal Year ending December 31, 2014 and accompanying Officer’s Compliance Certificate and (ii) the quarterly financial statements for the first fiscal quarter of the 2015 Fiscal Year and accompanying Officer’s Compliance Certificate;
provided
such waivers and consent automatically expire and are of no further force or effect if the Borrower fails to deliver the items set forth in clauses (i) and (ii) above on or prior to June 30, 2015.
D.
The Borrower has requested that the Lenders consent to an extension of time until to August 31, 2015 to (i) deliver the restated audited financial statements for the Fiscal Year ending December 31, 2014 and a corrected Officer’s Compliance Certificate, (ii) deliver the quarterly financial statements for the fiscal quarter ending March 31, 2015 and accompanying Officer’s Compliance Certificate and (iii) deliver the quarterly financial statements for the fiscal quarter ending June 30, 2015 and accompanying Officer’s Compliance Certificate.
E.
Until such financial statements and certificates are received by the Administrative Agent, the Borrower is willing to agree to certain additional limitations on certain of its actions.
F.
The Required Lenders are willing to agree to the requested waivers and consents subject to the provisions and additional limitations of this Limited Waiver.
NOW, THEREFORE, in consideration of the covenants, conditions and agreements hereafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are all hereby acknowledged, the Borrower, the Required Lenders and the Administrative Agent covenant and agree as follows:
1.
LIMITED WAIVERS
.
(a)
Subject to the terms of this Limited Waiver, including, without limitation, compliance by the Borrower with each of the terms of Section 2 below, the Required Lenders hereby agree, until August 31, 2015, to (i) waive the Existing Events of Default, (ii) waive compliance by the Credit Parties with
Sections 7.1(a)
and
7.2(a)
of the Credit Agreement for the Fiscal Year ending December 31, 2014 only and (iii) waive compliance with
Sections 7.1(b)
and
7.2(a)
of the Credit Agreement for the first and second fiscal quarters of the 2015 Fiscal Year only. This Limited Waiver (x) is limited and does not relate to any other covenant or provision of the Credit Agreement or any other Loan Document, and (y) shall automatically terminate and be of no further force or effect if (1) there exists any other Default or Event of Default or (2) the Borrower fails to comply with any of the terms of Section 2 below.
(b)
For the avoidance of doubt, the limited waivers provided in
Section 1(a)
do not waive (i) any other Default or Event of Default (including any Event of Default arising from the Borrower’s failure to comply with the financial covenants set forth in
Section 8.15
of the Credit Agreement), (ii) the retroactive adjustment of the Applicable Margin for any period prior to August 31, 2015 in which the Consolidated Total Leverage Ratio reported in any Officer’s Compliance Certificate is found to have been inaccurately reported or (iii) the payment of accrued additional interest and fees owing as a result of any such retroactive adjustment of the Applicable Margin.
2.
LIMITED AND CONDITIONAL WAIVER; REQUIREMENTS
. The Borrower agrees that the foregoing waiver is subject to, and conditioned upon, the Borrower’s compliance with the each of following:
(a)
Limitation on Borrowings and Letters of Credit
. The Borrower agrees that during the Waiver Period and notwithstanding any provision in the Credit Agreement to the contrary, (i) the Borrower will not be entitled to borrow more than $70,000,000 in the
aggregate principal outstanding amount at any time for all Revolving Credit Loans (and the Credit Parties hereby agree that, during the Waiver Period, the Lenders have no
obligation to make available Revolving Credit Loans to the Borrower in excess of $70,000,000 in the aggregate principal outstanding for all Revolving Credit Loans at any time) and (ii) the Borrower will not be entitled to have more than $15,000,000 in L/C Obligations outstanding at any time (and the Credit Parties hereby agree that, during the Waiver Period, the Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, the L/C Obligations would exceed $15,000,000). “
Waiver Period
” means the period commencing on June 30, 2015 and ending on the earlier of (x) the date that the Administrative Agent has received the financial statements and Officer’s Compliance Certificates required to be delivered pursuant to
Section 2(c)(i)
hereof and is in compliance with the requirements of
Section 2(c)(ii)
hereof and (y) August 31, 2015.
(b)
No Swingline Loans
. The Borrower shall not have any right to request, and none of the Administrative Agent, the Lenders, or the Swingline Lender shall have any obligation to make, convert to, continue, issue or participate in, any Swingline Loan during the Waiver Period.
(c)
Delivery of Financial Statements and Officer’s Compliance Certificate
. The Borrower shall:
(i)
on or prior to August 31, 2015 (the “
Required Compliance Date
”), deliver (x) the restated audited financial statements for the Fiscal Year ended December 31, 2014 required by
Section 7.1(a)
of the Credit Agreement and a report and opinion on such financial statements by an independent certified public accounting firm in accordance with
Section 7.1(a)
of the Credit Agreement, together with the accompanying Officer’s Compliance Certificate required by
Section 7.2(a)
of the Credit Agreement with respect to such Fiscal Year and (y) the financial statements required by
Section 7.1(b)
of the Credit Agreement and the related Officer’s Compliance Certificates required by
Section 7.2(a)
of the Credit Agreement for the fiscal quarter ended March 31, 2015 and for the fiscal quarter ended June 30, 2015,
(ii)
be in full compliance with
Section 7.1(a)
,
Section 7.1(b)
and
Section 7.2(a)
of the Credit Agreement (except for the delay in delivery as permitted hereby) and all other terms of the Credit Agreement and the other Loan Documents by the Required Compliance Date, and
(iii)
upon delivery of the financial statements and related Officer’s Compliance Certificates described above in
Section 2(c)(i)
, pay to the Administrative Agent, for the account of the Lenders, the accrued additional interest and fees owing as a result of any retroactive adjustment of the Applicable Margin for any period prior to August 31, 2015.
For the avoidance of doubt and notwithstanding anything in the Credit Agreement to the contrary, the failure (1) on the Required Compliance Date of the Borrower to show that it
was at all times during the term of this Agreement in compliance with the terms of the Credit Agreement (except for the delay in delivery as permitted hereby), including without
limitation, the financial covenants set forth in
Section 8.15
of the Credit Agreement as of the Fiscal Year ended December 31, 2014 and as of each of the fiscal quarters ended March 31, 2015 and June 30, 2015, as applicable, or (2) of the Borrower to deliver the financial statements and the related Officer’s Compliance Certificates described above in
Section 2(c)(i)
showing the compliance required in (1) above on or prior to the Required Compliance Date will constitute an immediate Event of Default under the Credit Agreement (without any grace period, cure period or notice of any kind).
(d)
Delivery of Updated Projections
. On or before August 4, 2015, the Borrower shall deliver an updated business plan and operating and capital budget of the Borrower and its Subsidiaries for the 2015 Fiscal Year, such plan to be prepared in accordance with GAAP and to include, on a monthly basis, the following: a monthly operating and capital budget, a projected Consolidated income statement, statement of cash flows and balance sheet, with calculations demonstrating performance relative to the financial covenants set forth in
Section 8.15
of the Credit Agreement and a report containing management’s discussion and analysis of such budget with a reasonable disclosure of the key assumptions and drivers with respect to such budget, accompanied by a certificate from a Responsible Officer of the Borrower to the effect that such budget contains good faith estimates (utilizing assumptions believed by the Borrower to be reasonable at the time of delivery of such budget) of the financial condition and operations of the Borrower and its Subsidiaries for the period covered thereby.
(e)
Additional Limitations on Certain Actions During Waiver Period
. Borrower and each other Credit Party agrees that during the Waiver Period no Credit Party will, nor will any Credit Party permit any Subsidiary to:
1.
notwithstanding the provisions of
Section 8.1
of the Credit Agreement, create, incur or assume any Indebtedness not owed by a Credit Party prior to the date hereof except (x) Indebtedness permitted by
Section 8.1(a)
of the Credit Agreement and (y) unsecured intercompany Indebtedness owed by the Borrower to any Foreign Subsidiary (
provided
, that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent). For the avoidance of doubt, the Credit Parties will not, nor will any Credit Party permit any Subsidiary to create, incur or assume any intercompany Indebtedness during the Waiver Period other than as permitted pursuant to
clause (y)
of the immediately preceding sentence;
provided
,
however
, such intercompany Indebtedness owing by the Borrower to any Foreign Subsidiary and any other intercompany Indebtedness owing by the Borrower or any other Credit Party to a Non-Guarantor Subsidiary and outstanding on the date hereof, may not be repaid during the Waiver Period;
2.
notwithstanding the provisions of
Section 8.2
of the Credit Agreement, create, incur, assume, or suffer to exist any Lien not existing prior to the
date hereof, except Liens permitted by
Sections 8.2(a)
,
(b)
,
(c)
,
(d)
,
(e)
,
(f)
,
(g)
,
(l)
,
(m)(ii)
and
(o)
of the Credit Agreement;
3.
notwithstanding the provisions of
Section 8.3
of the Credit Agreement, make any Investments, except (x) Investments permitted by
Sections 8.3(b)
,
(d)
,
(e)
,
(f)
,
(k)
,
(n)
,
(o)
,
(p)
and
(q)
of the Credit Agreement and (y) Investments by the Borrower and its Subsidiaries in the form of Capital Expenditures permitted pursuant to the Credit Agreement
provided
that such Investments shall not exceed $2,000,000 during the Waiver Period. For the avoidance of doubt, the Credit Parties will not, nor will any Credit Party permit any Subsidiary to make any Investments in any Credit Party or in any Non-Guarantor Subsidiary during the Waiver Period other than Investments in the form of a loan to the Borrower by any Foreign Subsidiary (
provided
, that the Indebtedness in respect of such loan shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent);
4.
notwithstanding the provisions of
Section 8.4
of the Credit Agreement, merge, consolidate or enter into any similar combination with any other Person or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except in accordance with the terms of
Sections 8.4(a)
or
(c)
of the Credit Agreement;
5.
notwithstanding the provisions of
Section 8.5
of the Credit Agreement, make any Asset Disposition, except (i) the granting of Permitted Liens described in
Section 2(e)2.
above, (ii) the transfer of assets in connection with a transaction permitted by
Section 2(e)4.
above, (iii) pursuant to
Section 8.5(j)
of the Credit Agreement, and (iv) the making of an Investment permitted by
Section 2(e)3.
above; and
6.
notwithstanding the provisions of
Section 8.6
of the Credit Agreement, declare, make or pay any Restricted Payments of any kind during the Waiver Period. For the avoidance of doubt, the Borrower agrees that, notwithstanding any provision of the Credit Agreement or any other Loan Document to the contrary, any declaration, making or payment of any Restricted Payment during the Waiver Period will constitute an immediate Event of Default under the Credit Agreement (without any grace period, cure period or notice of any kind).
3.
PRICING DURING THE WAIVER PERIOD; LIMITATION ON INTEREST PERIODS
.
(a)
During the Waiver Period, Revolving Credit Loans, Commitment Fees and letter of credit commissions will accrue at Pricing Level V as set forth in the definition of “Applicable Margin” in the Credit Agreement. Notwithstanding the foregoing, during the Waiver Period, to the extent the outstanding principal amount of all Revolving Credit Loans exceeds $66,000,000, the Applicable Margin with respect to
such excess shall be 3.25% for LIBOR Rate Loans (as increased by an amount equal to the applicable Mandatory Cost, if any, for LIBOR Rate Loans that are Alternative Currency Revolving Credit Loans) and 2.25% for Base Rate Loans. For the avoidance of doubt and
notwithstanding the limitation on borrowings set forth in
Section 2.1(a)(i)
hereof, during the Waiver Period, the Commitment Fee shall continue to be calculated at a rate per annum equal to the Applicable Margin on the average daily unused portion of the Revolving Commitment of the Revolving Credit Lenders (other than Defaulting Lenders).
(b)
Notwithstanding the provisions of
Section 4.1(b)
of the Credit Agreement, during the Waiver Period, the Borrower may only select an Interest Period of one (1) month in connection with each borrowing of, continuation of or conversion to, a LIBOR Rate Loan.
4.
AMENDMENT TO CREDIT AGREEMENT
.
(a)
Section 7.1
of the Credit Agreement shall be amended to add a new
subsection (f)
thereto to read as follows:
(f)
Cash Flow Forecast
. On or before the fifth Business Day of each calendar month (commencing on July 8, 2015
)
, a rolling 13-week cash flow forecast, in form and detail acceptable to the Administrative Agent, which shall include, without limitation, forecasted cash receipts and disbursements for the next succeeding 13-week period, and a forecast-to-actual comparison for the month just ended.
(b)
The notice address for Wells Fargo as Administrative Agent set forth in Section 11.1(a) of the Credit Agreement is hereby revised to read as follows:
If to Wells Fargo as
Administrative Agent:
Wells Fargo Bank, National Association
MAC D1109-019
1525 West W.T. Harris Blvd.
Charlotte, NC 28262
Attention of: Syndication Agency Services
Telephone No.: (704) 590-2703
Facsimile No.: (704) 590-3481
With copies to:
Wells Fargo Bank, National Association
MAC N9305-09L
90 S. 7
th
Street
Minneapolis, MN 55402
Attention of: Kristine Netjes
Telephone No.: (612) 316-3008
Facsimile No.: (612) 316-1491
E-mail: kristine.b.netjes@wellsfargo.com
5.
REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT
. By its execution and delivery hereof, the Borrower represents and warrants that, as of the date hereof and after giving effect to the limited waivers set forth in
Section 1
hereof:
(a)
other than the representations and warranties with respect to the previously delivered financial statements for Fiscal Year 2014, the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects, on and as of the date hereof as made on and as of such date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects on and as of the date hereof as if made on and as of such date, (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects as of such earlier date);
(b)
no event has occurred and is continuing which constitutes a Default or an Event of Default;
(c)
(i) the Borrower has full power and authority to execute and deliver this Limited Waiver, (ii) this Limited Waiver has been duly executed and delivered by the Borrower, and (iii) each of this Limited Waiver and the Credit Agreement, as amended and affected hereby, constitutes the legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies, regardless of whether considered in a proceeding in equity or at law;
(d)
neither the execution, delivery and performance of this Limited Waiver, nor the consummation of any transactions contemplated herein, will conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which the Borrower is a party or by which any of its properties may be bound or any Governmental Approval relating to Borrower, except to the extent such conflict, breach or default, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; and
(e)
no authorization, approval, consent, or other action by, notice to, or filing with, any governmental authority or other Person not already obtained (including the Board of Directors (or other similar governing body) of the Borrower) is required for the execution, delivery or performance by the Borrower of this Limited Waiver.
6.
CONDITIONS TO EFFECTIVENESS
. This Limited Waiver shall be effective as of June 30, 2015 (the “
Limited Waiver Effective Date
”) subject to satisfaction or completion of the following:
(a)
the Administrative Agent shall have received counterparts of this Limited Waiver executed by the Required Lenders;
(b)
the Administrative Agent shall have received counterparts of this Limited Waiver executed by the Borrower and acknowledged by each Subsidiary Guarantor;
(c)
the Administrative Agent shall have received, for the account of each Lender timely executing this Limited Waiver, a waiver fee equal to ten basis points (0.10%) of the Revolving Credit Commitment of such Lender;
(d)
the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent accrued, unpaid and invoiced prior to or on the Limited Waiver Effective Date; and
(e)
the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and its counsel, such other documents, certificates and instruments as the Administrative Agent shall reasonably require.
7.
REFERENCE TO THE CREDIT AGREEMENT
.
(a)
Upon the effectiveness of this Limited Waiver, each reference in the Credit Agreement to “this Agreement”, “hereunder”, or words of like import shall mean and be a reference to the Credit Agreement, as amended and affected hereby.
(b)
The Credit Agreement, as amended and affected by the Limited Waiver referred to above, shall remain in full force and effect and is hereby ratified and confirmed.
8.
RELEASE
.
As a material part of the consideration for the Administrative Agent and the Lenders entering into this Limited Waiver, the Borrower and each Subsidiary Guarantor (collectively, the “
Releasors
”) agree as follows (the “
Release Provision
”):
(a)
The Releasors, jointly and severally, hereby release and forever discharge the Administrative Agent, the Swingline Lender, the Issuing Lender each Lender and the Administrative Agent’s, the Swingline Lender’s, Issuing Lender’s and each Lender’s predecessors, successors, assigns, officers, managers, directors, shareholders, employees, agents, attorneys and other professionals, representatives, parent corporations, subsidiaries, and affiliates (hereinafter all of the above collectively referred to as the “
Lender Group
”), from any and all claims, counterclaims, demands, damages, debts, agreements, covenants, suits, contracts, obligations, liabilities, accounts, offsets, rights, actions, and causes of action of any nature whatsoever and whether arising at law or in equity, presently possessed, whether known or unknown, whether liability be direct or indirect, liquidated or unliquidated, presently accrued, whether absolute or contingent, foreseen or unforeseen, and whether or not heretofore asserted arising out of, arising under
or related to the Loan Documents (collectively, the “
Claims
”), that Releasors may have or allege to have against any or all of the Lender Group and that arise from events occurring before the Limited Waiver Effective Date.
(b)
The Releasors agree not to sue any of the Lender Group nor in any way assist any other person or entity in suing the Lender Group with respect to any of the Claims released herein. The Release Provision may be pleaded as a full and complete defense to,
and may be used as the basis for an injunction against, any action, suit, or other proceeding which may be instituted, prosecuted, or attempted in breach of the release contained herein.
(c)
The Releasors acknowledge, warrant, and represent to Lender Group that:
(i)
The Releasors have read and understand the effect of the Release Provision. The Releasors have had the assistance of independent counsel of their own choice, or have had the opportunity to retain such independent counsel, in reviewing, discussing, and considering all the terms of the Release Provision; and if counsel was retained, counsel for Releasors has read and considered the Release Provision and advised Releasors with respect to the same. Before execution of this Limited Waiver, the Releasors have had adequate opportunity to make whatever investigation or inquiry they may deem necessary or desirable in connection with the subject matter of the Release Provision.
(ii)
The Releasors are not acting in reliance on any representation, understanding, or agreement not expressly set forth herein. The Releasors acknowledge that Lender Group has not made any representation with respect to the Release Provision except as expressly set forth herein.
(iii)
The Releasors have executed this Limited Waiver and the Release Provision thereof as a free and voluntary act, without any duress, coercion, or undue influence exerted by or on behalf of any person or entity.
(iv)
The Releasors are the sole owners of the Claims released by the Release Provision, and the Releasors have not heretofore conveyed or assigned any interest in any such Claims to any other person or entity.
(d)
The Releasors understand that the Release Provision was a material consideration in the agreement of the Administrative Agent, Swingline Lender, Issuing Lender and each Lender to enter into this Limited Waiver.
(e)
It is the express intent of the Releasors that the release and discharge set forth in the Release Provision be construed as broadly as possible in favor of Lender Group so as to foreclose forever the assertion by the Releasors of any Claims released hereby against Lender Group.
(f)
If any term, provision, covenant, or condition of the Release Provision is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of the provisions shall remain in full force and effect.
(g)
The Releasors acknowledge that they may hereafter discover facts in addition to or different from those that they now know or believe with respect to the Claims released herein, but the Releasors expressly shall have and intend to fully, finally and forever have
released and discharged any and all such Claims. The Releasors expressly waive any provision of statutory or decisional law to the effect that a general release does not extend to Claims that the releasing party does not know or suspect to exist in such party’s favor at the time of executing the release.
9.
COSTS, EXPENSES AND TAXES
. The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent in connection with the preparation, reproduction, execution and delivery of this Limited Waiver and the other instruments and documents to be delivered hereunder (including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect thereto).
10.
SUBSIDIARY GUARANTOR’S ACKNOWLEDGMENT
. By signing below, each Subsidiary Guarantor (a) acknowledges, consents and agrees to the execution, delivery and performance by the Borrower of this Limited Waiver, (b) acknowledges and agrees that its obligations in respect of its Subsidiary Guaranty Agreement are not released, diminished, waived, modified, impaired or affected in any manner by this Limited Waiver or any of the provisions contemplated herein, (c) ratifies and confirms its obligations under the Subsidiary Guaranty Agreement, and (d) acknowledges and agrees that it has no claims or offsets against, or defenses or counterclaims to, the Subsidiary Guaranty Agreement.
11.
EXECUTION IN COUNTERPARTS
. This Limited Waiver may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument. For purposes of this Limited Waiver, a counterpart hereof (or signature page thereto) signed and transmitted by any Person party hereto to the Administrative Agent (or its counsel) by facsimile machine, telecopier or electronic mail is to be treated as an original. The signature of such Person thereon, for purposes hereof, is to be considered as an original signature, and the counterpart (or signature page thereto) so transmitted is to be considered to have the same binding effect as an original signature on an original document.
12.
GOVERNING LAW
. This Limited Waiver and the other Loan Documents and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Limited Waiver or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of New York.
13.
WAIVER OF JURY TRIAL
. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS LIMITED WAIVER OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS LIMITED WAIVER AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
14.
HEADINGS
. Section headings in this Limited Waiver are included herein for convenience of reference only and shall not constitute a part of this Limited Waiver for any other purpose.
15.
ENTIRE AGREEMENT
. THE CREDIT AGREEMENT, AS AMENDED AND AFFECTED BY THIS LIMITED WAIVER, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
IN WITNESS WHEREOF, this Limited Waiver is executed as of the date first set forth above.
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BORROWER:
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GLOBAL POWER EQUIPMENT GROUP INC.
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By:
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/s/ Raymond K. Guba
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Name:
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Raymond K. Guba
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Title:
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Chief Financial Officer
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ADMINISTRATIVE AGENT AND LENDERS:
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Swingline Lender, the Issuing Lender and Lender
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By:
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/s/ Kristine Netjes
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Name:
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Kristine Netjes
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Title:
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Senior Vice President
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U.S. BANK, NATIONAL ASSOCIATION,
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as Syndication Agent and Lender
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By:
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/s/ Chris Dolence
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Name:
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Chris Dolence
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Title:
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Vice President
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BRANCH BANKING AND TRUST COMPANY,
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as a Lender
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By:
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/s/ Janet L. Wheeler
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Name:
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Janet L. Wheeler
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Title:
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Vice President
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JPMORGAN CHASE BANK, N.A.,
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as a Lender
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By:
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/s/ Joseph T. Nash
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Name:
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Joseph T. Nash
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Title:
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Underwriting Senior Associate
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ACKNOWLEDGED AND AGREED TO:
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AS SUBSIDIARY GUARANTORS:
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WILLIAMS INDUSTRIAL SERVICES GROUP, L.L.C.
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BRADEN MANUFACTURING, L.L.C.
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WILLIAMS INDUSTRIAL SERVICES, LLC
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WILLIAMS SPECIALTY SERVICES, LLC
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WILLIAMS PLANT SERVICES, LLC
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CONSTRUCTION & MAINTENANCE PROFESSIONALS, LLC
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WILLIAMS GLOBAL SERVICES, INC.
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KOONTZ-WAGNER CUSTOM CONTROLS HOLDINGS LLC
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TOG HOLDINGS, INC.
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TOG MANUFACTURING COMPANY, INC.
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GPEG, LLC
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HETSCO HOLDINGS, INC.
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HETSCO, INC.
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GLOBAL POWER TECHNICAL SERVICES, INC.
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BRADEN HOLDINGS, LLC
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By:
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/s/ Raymond K. Guba
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Name:
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Raymond K. Guba
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Title:
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Chief Financial Officer
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Exhibit 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (“
Agreement
”) is effective as of the 26th day of June, 2015 (the “
Effective Date
”), between Global Power Equipment Group Inc. (the “
Company
”) and Terence J. Cryan (“
Executive
”). In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.
Employment
. The Company shall employ Executive, and Executive accepts employment with the Company, upon the terms and subject to the conditions set forth in this Agreement, for the period beginning on the Effective Date and ending on the earlier of (a) the Date of Termination (as defined in Section 4(e) of this Agreement), or (b) June 1, 2017 (the “
Term
”). Unless terminated prior to that date, the Term shall be automatically renewed for successive one-year periods on the terms and subject to the conditions of this Agreement (including, without limitation, Sections 8, 9 and 10 hereof), commencing on June 1, 2017, and on each June 1st thereafter, unless either the Company or Executive gives the other party written notice (in accordance with Section 14 hereof), at least 90 calendar days prior to the end of such initial or extended Term, of its or his intention not to renew this Agreement or the employment of Executive. For purposes of this Agreement, any reference to the “Term” of this Agreement shall include the original term and any extension thereof.
2.
Position and Duties
; Location
.
(a)
Position and Duties
. During the Term, Executive shall be employed by the Company as President and Chief Executive Officer. Executive shall report solely to the Board of Directors of the Company (the “
Board
”) and shall have such duties, responsibilities and authorities as are customarily associated with his position (including, but not limited to, the general management of the affairs of the Company) and such additional duties and responsibilities consistent with his positions as may, from time to time, be properly and lawfully assigned to him.
(b)
Board Service
. During the Term, the Company shall cause the Nominating and Corporate Governance Committee of the Board (the “
Nominating Committee
”) to nominate Executive to serve as a member of the Board each year Executive’s term of Board service is to be slated for reelection to the Board. If, during the Term, the Company’s stockholders vote in favor of the Nominating Committee’s nomination of Executive to serve as a member of the Board, Executive agrees to serve in such capacity and also agrees that any such Board service shall be without additional compensation.
(c)
Engaging in Other Activities
. During the Term, Executive shall devote substantially all of his business time, energies and talents to serving as President and Chief Executive Officer of the Company, and shall perform his duties conscientiously and faithfully, subject to the reasonable and lawful directions of the Board and in accordance with the policies, rules and decisions adopted from time to time by the Company and the Board. During the Term, it shall not be a violation of this Agreement for Executive, subject to the requirements of Sections 8, 9 and 10 hereof, to (i) serve on civic or charitable boards, (ii) with the consent of the Board, which consent shall not be unreasonably withheld, serve on corporate boards unrelated
to the Company (and retain all compensation in whatever form for such service), (iii) deliver lectures and fulfill speaking engagements, and (iv) manage personal investments, so long as such activities (individually or in the aggregate) do not significantly interfere with the performance of Executive’s responsibilities as set forth in Sections 2(a) or 2(b) of this Agreement or Executive’s fiduciary duties to the Company.
(d)
Location
. Executive shall perform his duties and responsibilities hereunder principally at the Company’s corporate headquarters, which currently is in Irving, Texas; provided that Executive may be required under reasonable business circumstances to travel outside of such location in connection with performing his duties under this Agreement.
(e)
Affiliates
. Executive agrees to serve, without additional compensation, as an officer and director of each of the other members of the Company’s affiliates, as determined by the Board, provided that such service is covered by Section 3(h) of this Agreement. As used in this Agreement, the term “
affiliate
” shall mean any entity controlled by, controlling, or under common control with, the Company.
(f)
Stock Ownership Guidelines
. Executive acknowledges and agrees to comply with the Company’s stock ownership guidelines for the Chief Executive Officer position, as the same may be amended from time to time.
(g)
Compensation Recovery Policy
. Executive agrees to execute the Compensation Recovery Policy Acknowledgement and Agreement attached as
Exhibit A
to this Agreement. Executive acknowledges that, notwithstanding any provision of this Agreement to the contrary, any incentive compensation or performance-based compensation paid or payable to Executive hereunder shall be subject to repayment or recoupment obligations arising under applicable law or the Company’s Compensation Recovery Policy, as the same may be amended from time to time.
3.
Compensation and Benefits
.
(a)
Base Salary
. During the Term, the Company shall pay Executive an annualized base salary (“
Annual Base Salary
”) at a rate of $675,000 U.S., effective retroactively to June 1, 2015, and payable in regular installments in accordance with the Company’s normal payroll practices. During the Term, the Annual Base Salary shall be reviewed by the Board at such time as the salaries of other senior executives of the Company are reviewed generally. The Annual Base Salary shall not be reduced other than in connection with an across-the-board salary reduction which applies in a comparable manner to other senior executives of the Company. If so increased or reduced, then such adjusted salary will thereafter be the Annual Base Salary for all purposes under this Agreement.
(b)
Signing Bonus
. Within 30 business days after the Effective Date, Executive shall be paid a cash bonus of $212,300 (the “
Signing Bonus
”). If Executive voluntarily terminates his employment without Good Reason, in either case prior to the filing of the Company’s Annual Report on Form 10-K for the 2015 fiscal year, then Executive shall be obligated to repay the Signing Bonus to the Company within 10 business days after Executive’s Date of Termination. To the extent permitted by applicable law and Section 409A of the
2
Internal Revenue Code of 1986, as amended (“
Section 409A
”), the Company may offset any amounts owed pursuant to this Section 3(b) against any amounts payable to Executive by the Company or its affiliates at the time that any such repayment is due and owing. The terms Cause, Disability, Good Reason and Date of Termination shall have the meaning provided in Section 4 of this Agreement.
(c)
Annual Incentive
. For each fiscal year during the Term, Executive shall be eligible to participate in the Company’s Short-Term Incentive Plan, or any successor plan (the “
STIP
”), under terms and conditions no less favorable than other senior executives of the Company; provided that Executive’s “target” short-term incentive opportunity shall not be less than 80% of his Annual Base Salary (the “
Target STI
”), with a minimum and maximum of 40% and 200% of his Annual Base Salary, respectively (or such higher percentages as determined by the Board or a committee thereof from time to time). Executive’s payment under the STIP for any fiscal year during the Term shall be based on the extent to which the predetermined performance objectives established by the Board or a committee thereof have been achieved for that year; provided that Executive’s short-term incentive opportunity for the 2015 fiscal year shall be subject to achievement of performance objectives established by the Board or a committee for the second half of the year, pro-rated from Executive’s date of hire through the end of the year, and with a reduction in the payout opportunity (threshold, target and maximum) of 50%. The annual incentive for any fiscal year, if earned, will be paid to Executive by the Company in accordance with the terms, and subject to the conditions, of the STIP. Nothing contained in this Section 3(c) will guarantee Executive any specific amount of annual incentive compensation or prevent the Board or a committee thereof from establishing performance goals and targets applicable only to Executive.
(d)
Equity Incentive Plan
. The Company shall file a Form S-8 Registration Statement with the Securities and Exchange Commission registering the issuance of equity securities under the Company’s 2015 Equity Incentive Plan (the “
Equity Incentive Plan
”) as soon as administratively possible after such a Registration Statement would be eligible to become effective under the Securities Act of 1933, as amended. Not later than 3 days after the effectiveness of such Registration Statement, the Compensation Committee of the Board shall approve a sign-on grant to Executive of restricted share units in respect of 100,000 shares of the Company’s common stock (the “
RSUs
”). The RSUs shall be granted upon the terms, and subject to the conditions, of the Equity Incentive Plan and the award agreement evidencing the grant of the RSUs, a copy of which is attached as
Exhibit B
to this Agreement. During the Term, the Company may, but shall have no obligation to, grant additional equity compensation awards to Executive under the Equity Incentive Plan or any successor equity plan.
(e)
Vacation
. During the Term, Executive shall be eligible for paid vacation in accordance with the Company’s policies, as may be in effect from time to time, for its senior executives generally; provided that Executive shall be entitled to paid vacation time at a rate of no less than 4 weeks per calendar year. Executive shall use such vacation time at such reasonable time or times each year as he may determine after consultation with the Chairman of the Board.
(f)
Expense Reimbursement
. Executive shall be reimbursed for all reasonable travel and other out-of-pocket expenses actually and properly incurred by Executive during the Term
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in connection with carrying out his duties hereunder in accordance with the Company’s policies, as may be in effect from time to time, for its senior executives generally. In addition, Executive shall be reimbursed for the cost of his roundtrip airline tickets (and related ground transportation and parking) for up to 2 monthly trips actually taken during the Term between Irving, Texas (or, if the Executive is traveling outside of such location in connection with performing his duties under this Agreement, such other location) and New York, New York.
(g)
Benefits
. During the Term, and except as otherwise provided in this Agreement, Executive shall be eligible to participate in all welfare, perquisites, fringe benefit, insurance, retirement and other benefit plans, practices, policies and programs, maintained by the Company and its affiliates applicable to senior executives of the Company generally, in each case as amended from time to time.
(h)
Indemnification and Insurance
. The Company shall indemnify Executive to the full extent provided for in its corporate charter, bylaws or any other indemnification policy or procedure as in effect from time to time and applicable to its other directors and senior executives and to the maximum extent that the Company indemnifies any of its other directors and senior executives, and he will be entitled to the protection of any insurance policies the Company may elect to maintain generally for the benefit of its directors and senior executives against all costs, charges, liabilities and expenses incurred or sustained by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being or having been a director, officer or employee of the Company or any of its affiliates or his serving or having served any other enterprise, plan or trust as a director, officer, employee or fiduciary at the request of the Company or any of its affiliates (other than any dispute, claim or controversy arising under or relating to this Agreement).
4.
Termination of Employment
.
(a)
Death and Disability
. Executive’s employment shall terminate automatically upon Executive’s death. If the Company determines in good faith that the Disability (as defined below) of Executive has occurred during the Term, it may give to Executive written notice in accordance with Section 14 of this Agreement of its intention to terminate Executive’s employment; provided that such notice is provided no later than 150 calendar days following the determination of Executive’s Disability. In such event, Executive’s employment shall terminate effective on the 30th calendar day after receipt of such notice by Executive (the “
Disability Effective Date
”), provided that, within the 30 calendar days after such receipt, Executive shall not have returned to full-time performance of Executive’s duties. For purposes of this Agreement, “
Disability
” shall mean the inability of Executive to perform the essential duties of the position held by Executive by reason of any medically determined physical or mental impairment that is reasonably expected to result in death or lasts for 120 consecutive calendar days in any one-year period, all as determined by an independent licensed physician mutually acceptable to the Company and Executive or Executive’s legal representative.
(b)
Cause
. Executive’s employment with the Company may be terminated by the Company with or without Cause. For purposes of this Agreement, “
Cause
” shall mean: (i) the continued failure of Executive to perform substantially Executive’s duties with the Company or any of its affiliates or Executive’s material disregard of the directives of the Board (in each case
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other than any such failure resulting from any medically determined physical or mental impairment) that is not cured by Executive within 20 calendar days after a written demand for substantial performance is delivered to Executive by the Board which specifically identifies the manner in which the Board believes that Executive has not substantially performed Executive’s duties or disregarded a directive of the Board; (ii) willful material misrepresentation at any time by Executive to the Board; (iii) Executive’s commission of any act of fraud, misappropriation (other than misappropriation of a de minimis nature) or embezzlement against or in connection with the Company or any of its affiliates or their respective businesses or operations; (iv) a conviction, guilty plea or plea of
nolo contendere
of Executive for any crime involving dishonesty or for any felony; (v) a material breach by Executive of his fiduciary duties of loyalty or care to the Company or any of its affiliates or a material violation of the Company’s Code of Business Conduct and Ethics or any other material breach of a Company policy, as the same may be amended from time to time; (vi) the engaging by Executive in illegal conduct, gross misconduct, gross insubordination or gross negligence that is materially and demonstrably injurious to the Company’s business or financial condition; or (vii) a material breach by Executive of his representations under Section 7 of this Agreement or his obligations under Section 8, 9, 10 or 12 of this Agreement that, in the case of Sections 8, 9 or 12, is not cured (if curable) by Executive within 20 calendar days after written demand for such cure is delivered to Executive by the Board which specifically identifies the manner in which the Board believes that Executive has materially breached his obligations.
(c)
Good Reason
. Executive’s employment with the Company may be terminated by Executive with or without Good Reason. For purposes of this Agreement, “
Good Reason
” shall mean the occurrence of any of the following without Executive’s consent: (i) a material reduction by the Company of Executive’s title, duties, responsibilities or reporting relationship set forth in Section 2(a) or (b); (ii) a material reduction by the Company of Executive’s Annual Base Salary (other than as permitted in Section 3(a) of this Agreement) or Executive’s Target STI; (iii) a failure to nominate Executive for re-election as a member of the Board (but for the avoidance of doubt, neither the failure by the Company’s stockholders to elect or re-elect Executive as a member of the Board, nor Executive’s resignation from the Board following such failure, shall be deemed to constitute Good Reason for purposes of this Agreement); or (iv) any other material breach of this Agreement by the Company. A termination of Executive’s employment by Executive shall not be deemed to be for Good Reason unless (x) Executive gives notice to the Company of the existence of the event or condition constituting Good Reason within 30 calendar days after such event or condition initially occurs or exists, and (y) the Company fails to cure such event or condition within 30 calendar days after receiving such notice. Additionally, Executive must terminate his employment within 120 calendar days after the initial occurrence of the circumstance constituting Good Reason for such termination to be “Good Reason” hereunder.
(d)
Notice of Termination
. Any termination by the Company for Cause, or by Executive for Good Reason, shall be communicated by Notice of Termination to the other party in accordance with Section 14. For purposes of this Agreement, a “
Notice of Termination
” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated and (iii) if the Date of Termination (as defined below) is other than the
5
date of receipt of such notice, specifies the termination date (which date shall be not more than 30 calendar days after the giving of such notice). The failure by the Company or Executive to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause or Good Reason shall not waive any right of the Company or Executive, respectively, hereunder or preclude the Company or Executive, respectively, from asserting such fact or circumstance in enforcing the Company’s or Executive’s rights hereunder.
(e)
Date of Termination
. “
Date of Termination
” means (i) if Executive’s employment is terminated by the Company for Cause, or by Executive for Good Reason, the date of receipt of the Notice of Termination or any later date specified therein within 30 calendar days after such notice, as the case may be, (ii) if Executive’s employment is terminated by the Company other than for Cause or Disability, or if Executive voluntarily resigns without Good Reason, the date on which the terminating party notifies the other party that such termination shall be effective, provided that on a voluntary resignation without Good Reason, the Company may, in its sole discretion, make such termination effective on any date it elects in writing between the date of the notice and the proposed date of termination specified in the notice, (iii) if Executive’s employment is terminated by reason of death, the date of death of Executive, (iv) if Executive’s employment is terminated by the Company due to Disability, the Disability Effective Date, or (v) if Executive’s employment is terminated at the end of the Term, the end of the Term.
(f)
Resignation from All Positions
. Notwithstanding any other provision of this Agreement, upon the termination of Executive’s employment by the Company for any reason, Executive shall immediately resign from all positions that he holds or has ever held with the Company and its affiliates, other than his position on the Board. If Executive is terminated for Cause, Executive shall also immediately resign from his position on the Board. Executive hereby agrees to execute any and all documentation to effectuate such resignations upon request by the Company, but he shall be treated for all purposes as having so resigned upon termination of his employment, regardless of when or whether he executes any such documentation.
5.
Severance Payments
.
(a)
Good Reason, Other than for Cause
. If, during the Term, the Company shall terminate Executive’s employment other than for Disability or Cause (but excluding by reason of the Company providing notice of its intention not to renew the Term), or if Executive shall terminate employment for Good Reason:
(i)
The Company shall pay, or cause to be paid, to Executive the sum of: (A) the portion of Executive’s Annual Base Salary earned through the Date of Termination, to the extent not previously paid; and (B) any accrued vacation pay, to the extent not previously paid (the sum of the amounts described in clauses (A) and (B) shall be referred to as the “
Accrued Benefits
”). The Accrued Benefits shall be paid in a single lump sum within 30 calendar days after the Date of Termination.
(ii)
Subject to Section 6 hereof, the Company shall continue to pay, or cause to be paid, to Executive, continued Annual Base Salary (without taking into account any reduction to the Annual Base Salary that constitutes Good Reason for Executive’s termination),
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for the 18-month period commencing on the Date of Termination (such period, the “
Severance Period
”), payable over the Severance Period in equal semi-monthly or other installments (not less frequently than monthly), with the installments that otherwise would be paid within the first 90 calendar days after the Date of Termination being paid in a lump sum (without interest) on the 90th calendar day after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination. Notwithstanding and in lieu of the foregoing, if the termination described in this Section 5(a) occurs within 90 calendar days prior to, or within 2 years following, a Change in Control (as defined in the Equity Incentive Plan), the Company shall pay or cause to be paid to Executive on the 90th calendar day after the Date of Termination (and in lieu of the amounts described in the first sentence of this Section 5(a)(ii)) a lump-sum payment equal to the sum of (A) the product of the Annual Base Salary (without taking into account any reduction to the Annual Base Salary that constitutes Good Reason for Executive’s termination) multiplied by 2, and (B) Executive’s Target STI under the STIP for the fiscal year during which the Date of Termination occurs (without pro-ration).
(iii)
Subject to Section 6 hereof, the Company shall pay to Executive the amount of any annual incentive that has been earned by Executive for a completed fiscal year or other measuring period preceding the Date of Termination (or that would have been earned by Executive had his employment continued through the date such annual incentive is paid to other senior executives), but has not yet been paid to Executive (the “
Prior Year Annual Incentive
”), payable in a single lump sum no later than two and one-half months following the end of the completed fiscal year or other measuring period.
(iv)
Subject to Section 6 hereof, and if and only if Executive’s Date of Termination occurs at least 3 full calendar months after the beginning of the Company’s fiscal year, Executive will be eligible to receive an annual incentive under the STIP for the fiscal year during which the Date of Termination occurs, determined as if Executive had remained employed for the entire year (and any additional period of time necessary to be eligible to receive the annual incentive for the year), based on actual Company performance during the entire fiscal year and without regard to any discretionary adjustments that have the effect of reducing the amount of the annual incentive (other than discretionary adjustments applicable to all senior executives who did not terminate employment), and assuming that any individual goals applicable to Executive were satisfied at the “target” level, pro-rated based on the number of days in the Company’s fiscal year through (and including) the Date of Termination (the “
Pro-Rated Annual Incentive
”). The Pro-Rated Annual Incentive shall be payable in a single lump sum at the same time that payments are made to other participants in the STIP for that fiscal year (pursuant to the terms of the STIP but in no event later than two and one-half months after the fiscal year during which the Date of Termination occurs).
(v)
To the extent not theretofore paid or provided, the Company shall pay or provide, or cause to be paid or provided, to Executive (or his estate) any other amounts, benefits or equity awards required to be paid or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company, including any benefits to which Executive is entitled under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (such other amounts and benefits shall be hereinafter referred to as the “
Other Benefits
”) in accordance with the terms and normal
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procedures of each such plan, program, policy or practice or contract or agreement, based on accrued and vested benefits through the Date of Termination.
(b)
Cause; Other than for Good Reason
. If, during the Term, Executive’s employment is terminated for Cause, or if Executive voluntarily terminates his employment without Good Reason (including by reason of Executive providing notice of his intention not to renew the Term), then the Company shall pay or provide to Executive the Accrued Benefits, payable in accordance with Section 5(a)(i) of this Agreement, and the Other Benefits, and no further amounts shall be payable to Executive under this Section 5 after the Date of Termination.
(c)
Non-Renewal of Term by the Company
. If, during the Term, the Company provides notice of its intention not to renew the Term, and Executive’s employment terminates at the end of the Term as a result thereof, then the Company shall pay or provide to Executive (i) the Accrued Benefits, payable in accordance with Section 5(a)(i) of this Agreement, (ii) the Other Benefits, (iii) subject to Section 6 hereof, the Prior Year Annual Incentive, payable in accordance with Section 5(a)(iii) of this Agreement, (iv) subject to Section 6 hereof, and if and only if Executive’s Date of Termination occurs at least 3 full calendar months after the beginning of the Company’s fiscal year, the Pro-Rated Annual Incentive (calculated solely for purposes of this Section 5(c) assuming “target” performance for each individual and corporate goal), payable in accordance with Section 5(a)(iv) of this Agreement, (v) subject to Section 6 hereof, and provided that Executive first enters into a consulting agreement provided by the Company with respect to post-termination transition services, the Company shall pay, or cause to be paid, to Executive an amount equal to the product of 1.5 multiplied by his Annual Base Salary (which amount shall be in lieu of any retainer or consulting fee under the consulting agreement), payable in equal semi-monthly or other installments (not less frequently than monthly) during the Severance Period, with the installments that otherwise would be paid within the first 60 calendar days after the Date of Termination being paid in a lump sum (without interest) on the 60th day after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination, and (vi) solely for purposes of determining Executive’s rights, if any, under any outstanding equity awards held by Executive as of the Date of Termination (and not for any other purpose), Executive shall be deemed to have been terminated by the Company without “cause”.
(d)
Disability and Death
. If, during the Term, Executive’s employment is terminated for Disability or Executive dies, then the Company shall pay or provide to Executive (or his estate) (i) the Accrued Benefits, payable in accordance with Section 5(a)(i) of this Agreement, (ii) the Other Benefits, (iii) subject to Section 6 hereof, the Prior Year Annual Incentive, payable in accordance with Section 5(a)(iii) of this Agreement, (iv) subject to Section 6 hereof, and if and only if Executive’s Date of Termination occurs at least 3 full calendar months after the beginning of the Company’s fiscal year, the Pro-Rated Annual Incentive, payable in accordance with Section 5(a)(iv) of this Agreement, and (v) in the case of termination for Disability, and subject to Section 6 hereof, an amount equal to the excess, if any, of Executive’s Annual Base Salary for 6 months, over the amounts payable to Executive under the Company’s short-term disability insurance program, which amount shall be payable in equal semi-monthly or other installments (not less frequently than monthly) over the period commencing on the
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Date of Termination and ending 6 months thereafter, with the installments that otherwise would be paid within the first 60 calendar days after the Date of Termination being paid in a lump sum (without interest) on the 60th day after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination.
(e)
Full Settlement; Offset
. The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company or any of its affiliates may have against Executive or others, except as otherwise may be provided in this Section or Section 2(g) or Section 11 hereof. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not Executive obtains other employment. Notwithstanding the foregoing provisions of this Section 5(e), any payments otherwise due to Executive under Sections 5(a)(ii) or 5(c)(v) of this Agreement shall be subject to offset and reduced, on a dollar-for-dollar basis, by any cash retainer or meeting fees and any equity awards (based on grant date fair value for accounting purposes) that Executive receives in connection with serving on the Board during the Severance Period.
(f)
Section 280G
. In the event it shall be determined that any payment or distribution by the Company or any of its affiliates to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (the “
Total Payments
”), is or will be subject to the excise tax (the “
Excise Tax
”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “
Code
”), then the Total Payments shall be reduced to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “
Safe Harbor Cap
”), if the net after-tax benefit to Executive after reducing Executive’s Total Payments to the Safe Harbor Cap is greater than the net after-tax (including the Excise Tax) benefit to Executive without such reduction. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payment made pursuant to Section 5(a)(ii) of this Agreement, then to the payment made pursuant to Section 5(a)(iii) of this Agreement, then to the payment made pursuant to Section 5(a)(iv) of this Agreement, and then to any other payment that triggers such Excise Tax in the following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant); (iii) cancellation of accelerated vesting of other equity awards (based on the reverse order of the date of grant); and (iv) reduction of any other payments due to Executive (with benefits or payments in any group having different payment terms being reduced on a pro-rata basis). All mathematical determinations, and all determinations as to whether any of the Total Payments are “parachute payments” (within the meaning of Section 280G of the Code), that are required to be made under this paragraph, including determinations as to whether the Total Payments to Executive shall be reduced to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determinations, shall be made at the Company’s expense by a nationally recognized accounting firm mutually acceptable to the Company and Executive.
6.
Release
. Notwithstanding anything contained herein to the contrary, the Company shall not be obligated to make any payment or provide any benefit under Sections
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5(a)(ii), (iii) and (iv), Sections 5(c)(iii), (iv) and (v), or Sections 5(d)(iii), (iv) and (iv) hereof unless: (a) Executive or Executive’s legal representative first executes within 50 calendar days after the Date of Termination a release of claims agreement in the form attached hereto as
Exhibit C
, with such changes as the Company, after consulting with Executive or Executive’s legal representative, may determine to be required or reasonably advisable in order to make the release enforceable and otherwise compliant with applicable law (the “
Release
”), (b) Executive does not revoke the Release, and (c) the Release becomes effective and irrevocable in accordance with its terms.
7.
Representations
. Executive hereby represents and warrants to the Company that Executive is not party to any contract, understanding, agreement or policy, whether or not written, with his current employer (or any other previous employer) or otherwise, that would be breached by Executive’s entering into, or performing services under, this Agreement. Executive further represents that he has disclosed to the Company in writing all material threatened, pending, or actual claims against Executive that are unresolved and still outstanding as of the Effective Date, in each case of which he is aware, resulting or arising from his service with his current employer (or any other previous employer) or his membership on any boards of directors.
8.
Work Product
. 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 affiliates’ 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 Executive (either solely or jointly with others) while employed by or serving as a consultant to the Company or any of its affiliates (“
Work Product
”) shall be the sole and exclusive property of the Company or any such affiliate. 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).
9.
Confidential Information.
(a)
“
Confidential Information
” means information disclosed to Executive or known by Executive as a result of employment by the Company, not generally known to the trade or industry in which the Company or its affiliates are engaged, about products, processes, technologies, machines, customers, clients, employees, services and strategies of the Company and its affiliates, including, but not limited to, inventions, research, development, manufacturing, purchasing, financing, computer software, computer hardware, automated systems, engineering, marketing, merchandising, selling, sales volumes or strategies, number or location of sales representatives, names or significance of the Company’s customers or clients or their employees or representatives, preferences, needs or requirements, purchasing histories, or other customer or client-specific information. Such Confidential Information is and shall continue to be the property of the Company.
(b)
Executive recognizes that Confidential Information is of great value to the Company, that the Company has legitimate business interests in protecting its confidential information, and that the disclosure to anyone not authorized to receive such information will
10
cause immediate and irreparable injury to the Company. Except as required by law or in the performance of his duties for the Company, unless Executive first secures the Company’s written consent, Executive will not divulge, disclose, use, copy, disseminate, lecture upon or publish Confidential Information. Executive understands and agrees that the obligations not to disclose, use, disseminate, lecture upon or publish Confidential Information shall continue after termination of employment for any reason. Further, Executive will use his best efforts and diligence to safeguard and to protect the Confidential Information against disclosure, misuse, espionage, loss or theft.
(c) Executive agrees that upon the Date of Termination, or at any other time that the Company may request, for whatever reason, Executive shall deliver (and in the event of Executive’s death or Disability, his representative shall deliver) to the Company all computer equipment or backup files of or relating to the Company or its affiliates, all memoranda, correspondence, customer data, notes, plans, records, reports, manuals, photographs, computer tapes and software and other documents and data (and all copies thereof) relating to Confidential Information, Work Product, or the business of the Company or its affiliates which Executive has in his possession, custody or control. If the Company requests, Executive (or his representative) agrees to provide written confirmation that Executive has returned all such materials.
(d) Executive agrees that upon the Date of Termination, or at any other time that the Company may request, for whatever reason, 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 its affiliates, all memoranda, correspondence, customer data, notes, plans, records, reports, manuals, photographs, computer tapes and software and other documents and data (and all copies thereof) relating to Confidential Information, Work Product, or the business of the Company or its affiliates which Executive has in his possession, custody or control.
10.
Non-compete; Non-solicitation.
(a) Executive agrees that during the Term and thereafter during the Protection Period (as defined in Section 10(f) below), Executive will not directly or indirectly (by himself or in association with any individual or entity) own, operate, manage, control, be employed by, participate in, consult with, advise, provide services for, or in any manner engage in any business which competes in any way with the business of the Company and its affiliates, which the parties acknowledge includes the provision of power generation equipment and modification and maintenance services for customers in the domestic and international energy, power infrastructure or service industries, or in any other business activity that the Company or its affiliates is conducting, or has active plans to conduct, as of the Date of Termination. This restriction shall apply to any geographic area in which the Company, or any affiliate for which Executive had any responsibilities during the term of his employment, engaged in business, or had active plans to engage in business, during the term of Executive’s employment. The restrictions contained herein shall not prohibit Executive from being a passive owner of not more than 5% of the outstanding stock of a corporation which is publicly traded, so long as Executive has no active participation in the business of such corporation. Notwithstanding the foregoing, with respect to an entity which is engaged in both a competing business and a non-
11
competing business, Executive may provide services to the non-competing business, provided that Executive does not render any services or advice, directly or indirectly, to the competing business.
(b) Executive agrees that during the Term and thereafter during the Protection Period, Executive will not directly or indirectly: (i) solicit or induce, or attempt to solicit or induce, any employee, consultant or independent contractor of the Company or of any affiliate to terminate his or her employment or relationship with the Company or affiliate; (ii) hire any person who Executive knows was an employee, consultant or independent contractor of the Company or of any affiliate during the last 6 months of Executive’s employment by the Company; or (iii) induce or attempt to induce any customer, supplier, distributor, franchisee, licensee, or other individual or entity that has any business relationship with the Company or any of its affiliate to cease doing business with the Company or any of its affiliates, or in any way interfere with the relationship between any such customer, supplier, distributor, franchisee, licensee, or any other individual or entity and the Company or any of its affiliates.
(c) To enable the Company to monitor Executive’s compliance with the obligations imposed by this Agreement, Executive agrees to inform the Company, upon the Date of Termination, of the identity of any new employer and of Executive’s new job title. Executive will continue to so inform the Company, in writing, any time Executive changes employment during the Protection Period.
(d) In the event that any of these provisions are deemed invalid or unenforceable under applicable law, that shall not affect the validity or enforceability of the remaining provisions. To the extent any provision is unenforceable because it is overbroad, that provision shall be limited to the extent required by applicable law and enforced as so limited.
(e) Executive has carefully considered the nature and extent of the restrictions upon him and the rights and remedies conferred upon the Company under this Section 10, and hereby acknowledges and agrees that the same are reasonable in time and territory, are designed to eliminate competition that otherwise would be unfair to the Company, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executive’s sole means of support, are fully required to protect the legitimate interests of the Company, and do not confer a benefit upon the Company disproportionate to the detriment to Executive.
(f) For purposes of this Section 10, the term “Protection Period” shall mean the period commencing on the Date of Termination and ending on the date 18 months after the Date of Termination, provided, however, that such period shall be extended by any length of time during which Executive is in breach of the covenants contained in this Section 10.
11.
Remedies
. Executive recognizes and affirms that in the event of his breach of any provision of this Sections 8, 9 or 10 hereof, money damages would be inadequate and the Company would have no adequate remedy at law. Accordingly, Executive agrees that in the event of a breach or a threatened breach by Executive of any of the provisions of Sections 8, 9 or 10, the Company, in addition and supplementary to other rights and remedies existing in its favor, may (a) 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
12
provisions hereof (without posting a bond or other security), and (b) exercise its rights hereunder to cease any further payments and/or vesting of equity awards. Executive understands and acknowledges that the Company can bar him from disclosing or using Confidential Information, bar him from accepting or continuing prohibited employment or rendering prohibited services, or bar him from soliciting certain individuals and entities for the periods specified in Sections 8, 9 and 10 above. In the event that the Company institutes legal action to enforce Sections 8, 9 or 10 of this Agreement, Executive agrees that the Company shall be entitled to recover from him its costs of any action (including reasonable attorneys’ and expert fees and expenses). Nothing in this Section 11 will be deemed to limit the Company’s remedies at law or in equity for any breach by Executive of any of the provisions of Sections 8, 9 or 10 that may be pursued or availed of by the Company.
12.
Cooperation in Investigations and Proceedings.
During the Term and for a period of 5 years thereafter, Executive shall cooperate with the Company and its affiliates, upon the Company’s reasonable request, with respect to any internal investigation or administrative, regulatory or judicial proceeding involving matters occurring, in whole or in part, during such employment with the Company and within the scope of Executive’s duties and responsibilities to the Company during his employment with the Company (including, without limitation, Executive being available to the Company upon reasonable notice for interviews and factual investigations, appearing at the Company’s reasonable request to give testimony without requiring service of a subpoena or other legal process, and turning over to the Company all relevant Company documents which are or may have come into Executive’s possession during his employment). In requesting Executive’s cooperation, the Company shall take into account his other personal and professional obligations. Executive shall be reimbursed for the reasonable expenses Executive incurs in connection with any such cooperation and/or assistance and shall receive from the Company hourly compensation equal to the Annual Base Salary immediately prior to the Date of Termination divided by 1,800 hours, in each case in connection with any assistance or cooperation that occurs after the Date of Termination. Any such reimbursements or
per diem
compensation shall be paid to Executive no later than the 15th day of the month immediately following the month in which such expenses were incurred or such cooperation and/or assistance was provided (subject to Executive’s timely submission to the Company of proper documentation with respect thereto).
13.
Survival
. Subject to any limits on applicability contained therein, Sections 2(g), 3(h), 4(f), 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 23 and 24 shall survive and continue in full force in accordance with their terms notwithstanding any termination of the Term or this Agreement.
14.
Notices
. Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, sent by reputable overnight carrier or mailed by first class mail, return receipt requested, to the recipient. Notices to Executive shall be sent to the address of Executive most recently provided to the Company. Notices to the Company should be sent to Global Power Equipment Group Inc., 400 E. Las Colinas Boulevard, Suite No. 400 Irving, TX 75039, Attention: General Counsel. Any notice under this Agreement will be deemed to have been given when so delivered, sent or mailed.
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15.
Severability
. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
16.
Source of Payment
. Any payments to Executive under this Agreement shall be paid from the Company’s general assets.
17.
Complete Agreement
. This Agreement embodies the complete agreement and understanding between the parties with respect to the subject matter hereof and effective as of its date supersedes and preempts any prior understandings, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way, including the letter agreement between Executive and the Company dated as of March 20, 2015.
18.
Withholding of Taxes
. The Company and its affiliates may withhold from any amounts payable under this Agreement all federal, state, city or other taxes as the Company and its affiliates are required to withhold pursuant to any law or government regulation or ruling.
19.
Counterparts
. This Agreement may be executed in separate counterparts, each of which shall be deemed to be an original and both of which taken together shall constitute one and the same agreement.
20.
Successors and Assigns
.
(a) This Agreement is personal to Executive, and, without the prior written consent of the Company, shall not be assignable by Executive other than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns. Except as provided in Section 20(c), without the prior written consent of Executive this Agreement shall not be assignable by the Company, except to an affiliate.
(c) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. “
Company
” means the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and agrees to perform this Agreement by operation of law or otherwise.
21
.
Choice of Law
. This Agreement shall be governed, construed, interpreted and enforced in accordance with the substantive laws of the State of Delaware, without regard to
14
conflicts of law principles. The parties hereto irrevocably agree to submit to the jurisdiction and venue of the federal and state courts located in Delaware in any court action or proceeding brought with respect to or in connection with this Agreement.
22.
Voluntary Agreement
. Executive and the Company represent and agree that each has reviewed all aspects of this Agreement, has carefully read and fully understands all provisions of this Agreement, and is voluntarily entering into this Agreement. Each party represents and agrees that such party has had the opportunity to review any and all aspects of this Agreement with legal, tax or other adviser(s) of such party’s choice before executing this Agreement.
23.
Amendment and Waiver
. The provisions of this Agreement may be amended or waived only with the prior written consent of the Company and Executive, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement.
24.
Section 409A Compliance
.
(a)
In General
. Section 409A imposes payment restrictions on “nonqualified deferred compensation” (
i.e.,
potentially including payments owed to Executive upon termination of employment). Failure to comply with these restrictions could result in negative tax consequences to Executive, including immediate taxation, interest and a 20% additional income tax. It is the Company’s intent that this Agreement be exempt from the application of, or otherwise comply with, the requirements of Section 409A. Specifically, any taxable benefits or payments provided under this Agreement are intended to be separate payments that qualify for the “short-term deferral” exception to Section 409A to the maximum extent possible, and to the extent they do not so qualify, are intended to qualify for the involuntary separation pay exceptions to Section 409A, to the maximum extent possible. If neither of these exceptions applies, and if Executive is a “specified employee” within the meaning of Section 409A, then notwithstanding any provision in this Agreement to the contrary and to the extent required to comply with Section 409A, all amounts that would otherwise be paid or provided during the first 6 months following the Date of Termination shall instead be accumulated through and paid or provided (without interest) on the first business day following the 6-month anniversary of the Date of Termination.
(b)
Separation from Service
. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits subject to Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and Executive is no longer providing services (at a level that would preclude the occurrence of a “separation from service” within the meaning of Section 409A) to the Company or its affiliates as an employee or consultant, and for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service” within the meaning of Section 409A. Further, for purposes of determining the time and form of any payment to Executive under Section 5(a)(ii) of the Agreement, the term “Change in Control” shall, to the extent necessary under Section 409A to provide for payment of such amounts in a single lump sum, be deemed to mean a “Change in
15
Control” as defined in the Equity Incentive Plan that constitutes a “change in the ownership”, a “change in the effective control” or a “change in the ownership of a substantial portion of the assets” of the Company within the meaning of Section 409A.
(c)
Reimbursements
. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Section 409A: (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or before the last business day of Executive’s taxable year following the taxable year in which the expense occurred, or such earlier date as required hereunder.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above.
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GLOBAL POWER EQUIPMENT
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EXECUTIVE
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GROUP INC.
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/s/ Michael E. Rescoe
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/s/ Terence J. Cryan
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By: Michael E. Rescoe
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Terence J. Cryan
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Its: Chairman of the Compensation Committee of the Board of Directors
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EXHIBIT A
COMPENSATION RECOVERY POLICY
ACKNOWLEDGEMENT AND AGREEMENT
This Compensation Recovery Policy Acknowledgement and Agreement (this “
Agreement
”) is entered into as of the day of June, 2015, between Global Power Equipment Group Inc. (the “
Company
”) and Terence J. Cryan (“
Executive
”).
Recitals:
WHEREAS
, Executive is an “executive officer” of the Company as defined in Rule 3b-7 under the Securities Exchange Act of 1934;
WHEREAS
, the Company’s Board of Directors has adopted the Global Power Equipment Group Inc. Compensation Recovery Policy, as the same may be amended from time-to-time (the “
Policy
”); and
WHEREAS
, in consideration of, and as a condition to the receipt of, future performance-based compensation, Executive and the Company are entering into this Agreement.
Agreement:
NOW, THEREFORE
, the Company and Executive hereby agree as follows:
1. Executive acknowledges receipt of the Policy, a copy of which is attached hereto as
Annex A
and is incorporated into this Agreement by reference. Executive has read and understands the Policy and has had the opportunity to ask questions of the Company regarding the Policy.
2. Executive hereby acknowledges and agrees that the Policy shall apply to any annual incentives, time-based restricted share units, performance-based restricted share units, stock options or other performance-based compensation granted on or after March 20, 2015 (collectively, the “
Incentive Compensation
”), and all such Incentive Compensation shall be subject to repayment or forfeiture under the Policy.
3. Each award agreement or other document setting forth the terms and conditions of Incentive Compensation granted to Executive shall include a provision incorporating the requirements of the Policy; provided that the Company’s failure to incorporate the Policy into any award agreement or other document shall not waive the Company’s right to enforce the Policy. In the event of any inconsistency between the provisions of the Policy and the applicable award agreement or other document setting forth the terms and conditions of any Incentive Compensation, the terms of the Policy shall govern.
4. The repayment or forfeiture of Incentive Compensation pursuant to the Policy and this Agreement shall not in any way limit or affect the Company’s right to pursue disciplinary action or dismissal, take legal action or pursue any other remedies available to the Company, including, without limitation, enforcing the forfeiture and repayment provisions under the Company’s equity incentive plan. This Agreement and the Policy shall not replace, and shall be
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in addition to, any rights of the Company to recover Incentive Compensation, or any other compensation, from its executive officers under applicable laws and regulations, including but not limited to the Sarbanes-Oxley Act of 2002.
5. To the extent that Incentive Compensation subject to repayment or forfeiture under the Policy is not immediately returned or paid to the Company or forfeited, the Company may, to the extent permitted by law, seek other remedies, including a set off of the amounts so payable to it against any amounts that may be owing from time-to-time by the Company or a subsidiary to Executive for any reason, including, without limitation, wages, future payments of Incentive Compensation, severance, or vacation pay or other benefits; provided, however, that, except to the extent permitted by Treasury Regulation Section 1.409A-3(j)(4), such offset shall not apply to amounts that are “deferred compensation” within the meaning of Section 409A of the Internal Revenue Code.
6. Executive acknowledges that Executive’s execution of this Agreement is in consideration of, and is a condition to, the receipt by Executive of awards of Incentive Compensation from the Company on and after the date hereof;
provided
,
however
, that nothing in this Agreement shall be deemed to obligate the Company to make any such awards to Executive.
7. This Agreement may be executed in two or more counterparts, and by facsimile or electronic transmission, each of which will be deemed to be an original but all of which, taken together, shall constitute one and the same Agreement.
8. No modifications, waivers or amendments of the terms of this Agreement shall be effective unless in writing and signed by the parties or their respective duly authorized agents. Notwithstanding the foregoing, the Company may amend the Policy at any time, in its sole discretion, as the Company reasonably determines to be necessary or advisable for the Policy to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act or any other rules or regulations issued by the Securities and Exchange Commission or applicable securities exchanges and Executive hereby consents to any such amendment.
9. To the extent not preempted by federal law, this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to principles of conflict of laws. Each of this Agreement and the Policy shall survive and continue in full force in accordance with its terms notwithstanding any termination of Executive’s employment with the Company and its affiliates. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, administrators, heirs, legal representatives and assigns of Executive, and the successors and assigns of the Company. If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any jurisdiction, or would disqualify this Agreement under any law deemed applicable by the Company, such provision shall be construed or deemed amended or limited in scope to conform to applicable laws or, in the discretion of the Company, it shall be stricken and the remainder of this Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
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GLOBAL POWER EQUIPMENT
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EXECUTIVE
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GROUP INC.
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By: Michael E. Rescoe
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Terence J. Cryan
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Its: Chairman of the Compensation Committee of the Board of Directors
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ANNEX A
GLOBAL POWER EQUIPMENT GROUP INC.
COMPENSATION RECOVERY POLICY
NOW, THEREFORE, BE IT RESOLVED, that the Corporation hereby adopts a compensation recovery policy on the following terms and conditions, effective with respect to annual incentives or other performance-based compensation granted on or after January 1, 2011:
Each executive officer shall repay or forfeit, to the fullest extent permitted by law and as directed by the Board, any annual incentive or other performance-based compensation received by him or her if:
·
the payment, grant or vesting of such compensation was based on the achievement of financial results that were subsequently the subject of a restatement of the Corporation’s financial statements filed with the Securities and Exchange Commission,
·
the Board determines in its sole discretion, exercised in good faith, that the executive officer engaged in fraud or misconduct that caused or contributed to the need for the restatement,
·
the amount of the compensation that would have been received by the executive officer had the financial results been properly reported would have been lower than the amount actually received, and
·
the Board determines in its sole discretion that it is in the best interests of the Corporation and its stockholders for the executive officer to repay or forfeit all or any portion of the compensation.
The Board, acting solely by the independent directors as identified under the applicable exchange listing standards, shall have full and final authority to make all determinations under this policy, including without limitation whether the policy applies and if so, the amount of compensation to be repaid or forfeited by the executive officer. All determinations and decisions made by the Board pursuant to the provisions of this policy shall be final, conclusive and binding on all persons, including the Corporation, its affiliates, its stockholders and employees.
From and after January 1, 2011, each award agreement or other document setting forth the terms and conditions of any annual incentive or other performance-based award granted to an executive officer shall include a provision incorporating the requirements of this policy. Moreover, each executive officer will be required to sign a Compensation Recovery Policy Acknowledgement and Agreement in a form attached to this resolution as Exhibit A. The remedy specified in this policy shall not be exclusive and shall be in addition to every other right or remedy at law or in equity that may be available to the Corporation.
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EXHIBIT B
GLOBAL POWER EQUIPMENT GROUP INC.
RESTRICTED SHARE UNIT AGREEMENT
Notice of Restricted Share Unit Award
Global Power Equipment Group Inc. (the “
Company
”) grants to the Grantee named below, in accordance with the terms of the Global Power Equipment Group Inc. 2015 Equity Incentive Plan (the “
Plan
”) and this Restricted Share Unit Agreement (the “
Agreement
”), the number of Restricted Share Units (the “
Restricted Share Units
”), as of the Date of Grant set forth below. Capitalized terms used in this Agreement without definition shall have the meanings assigned to them in the Plan.
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Name of Grantee:
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Terence J. Cryan
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Date of Grant:
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[
·
], 2015
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Number of Restricted Share Units:
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100,000
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Vesting Commencement Date:
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June 1, 2015
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Vesting Dates:
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September 1, 2015
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December 1, 2015
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March 1, 2016
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June 1, 2016
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September 1, 2016
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December 1, 2016
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March 1, 2017
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June 1, 2017
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Terms of Agreement
1.
Grant of Restricted Share Units
. Subject to and upon the terms, conditions, and restrictions set forth in this Agreement and in the Plan, the Company hereby grants to the Grantee as of the Date of Grant, the Restricted Share Units set forth above. Each Restricted Share Unit shall represent the contingent right to receive one Share and shall at all times be equal in value to one Share. The Restricted Share Units shall be credited in a book entry account established for the Grantee until payment in accordance with Section 2 hereof.
2.
Vesting and Payment of Restricted Share Units
.
(a)
In General
. The Restricted Share Units shall vest to the extent of 12,500 Restricted Share Units on each of the Vesting Dates set forth above (each a “
Vesting Date
”), provided that the Grantee shall have remained in the continuous employ of the Company or a Subsidiary through the applicable Vesting Date. The Company shall deliver to the Grantee the Shares underlying the vested Restricted Share Units within 10 days following the Vesting Date. For purposes of this Section 2, the continuous employment of the Grantee with the Company and
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1
its Subsidiaries shall not be deemed to have been interrupted, and the Grantee shall not be deemed to have ceased to be an employee of the Company and its Subsidiaries, by reason of the transfer of his employment among the Company and its Subsidiaries.
(b)
Change in Control
. The provisions of Section 21 of the Plan shall apply in the case of a Change in Control.
3.
Forfeiture of Restricted Share Units
.
(a)
Forfeiture of Unvested Awards
. The Restricted Share Units that have not yet vested pursuant to Section 2 (and any right to unpaid Dividend Equivalents under Section 6 with respect to the Restricted Share Units), shall be forfeited automatically without further action or notice if the Grantee ceases to be employed by the Company or a Subsidiary prior to a Vesting Date for any reason.
(b)
Detrimental Activity
. The Restricted Share Units shall be subject to the provisions of Section 20 of the Plan, including those related to Detrimental Activity (as defined in the Plan). This Section 3(b) shall survive and continue in full force in accordance with its terms and the terms of the Plan notwithstanding any termination of the Grantee’s employment or the payment of the Restricted Share Units as provided herein.
4.
Transferability
. The Restricted Share Units may not be transferred, assigned, pledged or hypothecated in any manner, or be subject to execution, attachment or similar process, by operation of law or otherwise, unless otherwise provided under the Plan. Any purported transfer or encumbrance in violation of the provisions of this Section 4 shall be void, and the other party to any such purported transaction shall not obtain any rights to or interest in such Restricted Share Units.
5.
Dividend, Voting and Other Rights
. The Grantee shall not possess any incidents of ownership (including, without limitation, dividend and voting rights) in the Shares underlying the Restricted Share Units until such Shares have been delivered to the Grantee in accordance with Section 2 hereof. The obligations of the Company under this Agreement will be merely that of an unfunded and unsecured promise of the Company to deliver Shares in the future, and the rights of the Grantee will be no greater than that of an unsecured general creditor. No assets of the Company will be held or set aside as security for the obligations of the Company under this Agreement.
6.
Payment of Dividend Equivalents
. Upon payment of a vested Restricted Share Unit, the Grantee shall be entitled to a cash payment (without interest) equal to the aggregate cash dividends declared and payable with respect to one Share for each record date that occurs during the period beginning on the Date of Grant and ending on the date the vested Restricted Share Unit is paid (the “
Dividend Equivalent
”). The Dividend Equivalents shall be forfeited to the extent that the underlying Restricted Share Unit is forfeited and shall be paid to the Grantee, if at all, at the same time that the related vested Restricted Share Unit is paid to the Grantee in accordance with Section 2.
7.
No Employment Contract
. Nothing contained in this Agreement shall confer upon the Grantee any right with respect to continuance of employment by the Company and its
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Subsidiaries, nor limit or affect in any manner the right of the Company and its Subsidiaries to terminate the employment or adjust the compensation of the Grantee, in each case with or without Cause.
8.
Relation to Other Benefits
. Any economic or other benefit to the Grantee under this Agreement or the Plan shall not be taken into account in determining any benefits to which the Grantee may be entitled under any profit-sharing, retirement or other benefit or compensation plan maintained by the Company or a Subsidiary and shall not affect the amount of any life insurance coverage available to any beneficiary under any life insurance plan covering employees of the Company or a Subsidiary.
9.
Taxes and Withholding
. The Grantee is responsible for any federal, state, local or other taxes with respect to the Restricted Share Units and the Dividend Equivalents. The Company does not guarantee any particular tax treatment or results in connection with the grant or vesting of the Restricted Share Units, the delivery of Shares or the payment of Dividend Equivalents. To the extent the Company or any Subsidiary is required to withhold any federal, state, local, foreign or other taxes in connection with the delivery of Shares under this Agreement, then, except as otherwise provided below, the Company or Subsidiary (as applicable) shall retain a number of Shares otherwise deliverable hereunder with a value equal to the required withholding (based on the Fair Market Value of the Shares on the date of delivery); provided that in no event shall the value of the Shares retained exceed the minimum amount of taxes required to be withheld or such other amount that will not result in a negative accounting impact. Notwithstanding the preceding sentence, the Grantee may elect, on a form provided by the Company and subject to any terms and conditions imposed by the Company, to pay or provide for payment of the required tax withholding. If the Company or any Subsidiary is required to withhold any federal, state, local or other taxes with respect to Dividend Equivalents, then the Company or Subsidiary (as applicable) shall have the right in its sole discretion to reduce the cash payment related to the Dividend Equivalent by the applicable tax withholding.
10.
Adjustments
. The number and kind of shares of stock deliverable pursuant to the Restricted Share Units are subject to adjustment as provided in Section 16 of the Plan.
11.
Compliance with Law
. The Company shall make reasonable efforts to comply with all applicable federal and state securities laws and listing requirements with respect to the Restricted Share Units; provided that, notwithstanding any other provision of this Agreement, and only to the extent permitted under Section 409A of the Code, the Company shall not be obligated to deliver any Shares pursuant to this Agreement if the delivery thereof would result in a violation of any such law or listing requirement.
12.
Section 409A of the Code
. It is intended that the Restricted Share Units and any Dividend Equivalents provided pursuant to this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code, and this Agreement shall be interpreted, administered and governed in accordance with such intent. In particular, it is intended that the Restricted Share Units and any Dividend Equivalents shall be exempt from Section 409A of the Code, to the maximum extent possible, pursuant to the “short-term deferral” exception thereto.
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13.
Amendments
. Subject to the terms of the Plan, the Committee may modify this Agreement upon written notice to the Grantee. Any amendment to the Plan shall be deemed to be an amendment to this Agreement to the extent that the amendment is applicable hereto. Notwithstanding the foregoing, no amendment of the Plan or this Agreement shall adversely affect in a material way the rights of the Grantee under this Agreement without the Grantee’s consent unless the Committee determines, in good faith, that such amendment is required for the Agreement to either be exempt from the application of, or comply with, the requirements of Section 409A of the Code, or as otherwise may be provided in the Plan.
14.
Severability
. In the event that one or more of the provisions of this Agreement shall be invalidated for any reason by a court of competent jurisdiction, any provision so invalidated shall be deemed to be separable from the other provisions hereof, and the remaining provisions hereof shall continue to be valid and fully enforceable.
15.
Relation to Plan
. This Agreement is subject to the terms and conditions of the Plan. This Agreement and the Plan contain the entire agreement and understanding of the parties with respect to the subject matter contained in this Agreement, and supersede all prior written or oral communications, representations and negotiations in respect thereto. In the event of any inconsistency between the provisions of this Agreement and the Plan, the Plan shall govern. The Committee acting pursuant to the Plan, as constituted from time to time, shall, except as expressly provided otherwise herein, have the right to determine any questions that arise in connection with the grant of the Restricted Share Units.
16.
Successors and Assigns
. Without limiting Section 4, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, administrators, heirs, legal representatives and assigns of the Grantee, and the successors and assigns of the Company.
17.
Governing Law
. The interpretation, performance, and enforcement of this Agreement shall be governed by the laws of the State of Delaware, without giving effect to the principles of conflict of laws thereof.
18.
Use of Grantee’s Information
. Information about the Grantee and the Grantee’s participation in the Plan may be collected, recorded and held, used and disclosed for any purpose related to the administration of the Plan. The Grantee understands that such processing of this information may need to be carried out by the Company and its Subsidiaries and by third-party administrators whether such persons are located within the Grantee’s country or elsewhere, including the United States of America. The Grantee consents to the processing of information relating to the Grantee and the Grantee’s participation in the Plan in any one or more of the ways referred to above.
19.
Electronic Delivery
. The Grantee hereby consents and agrees to electronic delivery of any documents that the Company may elect to deliver (including, but not limited to, prospectuses, prospectus supplements, grant or award notifications and agreements, account statements, annual and quarterly reports, and all other forms of communications) in connection with this and any other award made or offered under the Plan. The Grantee understands that, unless earlier revoked by the Grantee by giving written notice to the VP of Human Resources of
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the Company, this consent shall be effective for the duration of the Agreement. The Grantee also understands that he or she shall have the right at any time to request that the Company deliver written copies of any and all materials referred to above at no charge. The Grantee hereby consents to any and all procedures the Company has established or may establish for an electronic signature system for delivery and acceptance of any such documents that the Company may elect to deliver, and agrees that his or her electronic signature is the same as, and shall have the same force and effect as, his or her manual signature. The Grantee consents and agrees that any such procedures and delivery may be effected by a third party engaged by the Company to provide administrative services related to the Plan.
20.
No Fractional Shares.
Fractional Shares or units will be subject to rounding conventions adopted by the Company from time to time; provided that in no event will the total shares issued exceed the total units granted under this award.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the Date of Grant.
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GLOBAL POWER EQUIPMENT GROUP INC.
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By:
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Name: Michael E. Rescoe
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Title: Chairman of the Compensation Committee of the Board of Directors
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By executing this Agreement, you acknowledge that a copy of the Plan, Plan Summary and Prospectus, and the Company’s most recent Annual Report and Proxy Statement (the “
Prospectus Information
”) either have been received by you or are available for viewing on the Company’s internet site at www.globalpower.com, and you consent to receiving this Prospectus Information electronically, or, in the alternative, agree to contact Keri Jolly at 214-574-2733, to request a paper copy of the Prospectus Information at no charge.
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GRANTEE
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Name: Terence J. Cryan
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EXHIBIT C
GENERAL RELEASE
This General Release (this “
Release
”) is made and entered into as of this [
·
] day of [
·
], 20[
·
], by and between Global Power Equipment Group Inc. (the “
Company
”) and Terence J. Cryan (“
Executive
”).
1.
Employment Status
. Executive’s employment with the Company and its affiliates terminated effective as of [
·
], 20[
·
] (the “
Separation Date
”).
2.
Payments and Benefits
. Upon the effectiveness of the terms set forth herein, the Company shall provide Executive with the benefits set forth in Sections 5(a)(ii), (iii) and (iv) of the Employment Agreement between Executive and the Company dated as of June [
·
], 2015 (the “
Employment Agreement
”), upon the terms, and subject to the conditions, of the Employment Agreement.
3.
No Liability
. This Release does not constitute an admission by the Company or its affiliates or their respective officers, directors, partners, agents, or employees, or by Executive, of any unlawful acts or of any violation of federal, state or local laws.
4.
Release
. In consideration of the payments and benefits set forth in Section 2 of this Release, Executive for himself, his heirs, administrators, representatives, executors, successors and assigns (collectively, “
Releasors
”) does hereby irrevocably and unconditionally release, acquit and forever discharge the Company, its respective affiliates and their respective successors and assigns (the “
Company Group
”) and each of its officers, directors, partners, agents, and former and current employees, including without limitation all persons acting by, through, under or in concert with any of them (collectively, “
Releasees
”), and each of them, from any and all claims, demands, actions, causes of action, costs, attorney fees, and all liability whatsoever, whether known or unknown, fixed or contingent, which Executive has, had, or may ever have against the Releasees relating to or arising out of Executive’s employment or separation from employment with the Company Group, from the beginning of time and up to and including the date Executive executes this Release. This Release includes, without limitation: (a) law or equity claims; (b) contract (express or implied) or tort claims; (c) claims for wrongful discharge, retaliatory discharge, whistle blowing, libel, slander, defamation, unpaid compensation, intentional infliction of emotional distress, fraud, public policy contract or tort, and implied covenant of good faith and fair dealing; (d) claims under or associated with any of the Company Group’s incentive compensation plans or arrangements; (e) claims arising under any federal, state, or local laws of any jurisdiction that prohibit age, sex, race, national origin, color, disability, religion, veteran, military status, sexual orientation, or any other form of discrimination, harassment, or retaliation (including without limitation under the Age Discrimination in Employment Act of 1967 as amended by the Older Workers Benefit Protection Act (“
ADEA
”), Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991, the Equal Pay Act of 1963, and the Americans with Disabilities Act of 1990, the Rehabilitation Act, the Family and Medical Leave Act, the Sarbanes-Oxley Act, the Employee Polygraph Protection Act, the Uniformed Services Employment and Reemployment Rights Act of 1994, the Genetic Information Nondiscrimination Act of 2008 (“
GINA
”), the Fair Labor Standards Act (“
FLSA
”), the Lilly Ledbetter Fair Pay Act or any other foreign, federal, state or
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local law or judicial decision); (f) claims arising under the Employee Retirement Income Security Act; and (g) any other statutory or common law claims related to Executive’s employment with the Company Group or the separation of Executive’s employment with the Company Group; provided, however, that nothing herein shall release the Company Group from (i) any obligation under the Employment Agreement; (ii) any obligation to provide benefit entitlements under any Company benefit or welfare plan that were vested as of the Separation Date; and (iii) from any rights or claims that relate to events or circumstances that occur after the date that the Executive executes this Release.
In addition, nothing in this Release is intended to interfere with Executive’s right to file a charge with the Equal Employment Opportunity Commission or any state or local human rights commission in connection with any claim Executive believes he may have against the Releasees. However, by executing this Release, Executive hereby waives the right to recover in any proceeding that Executive may bring before the Equal Employment Opportunity Commission or any state human rights commission or in any proceeding brought by the Equal Employment Opportunity Commission or any state human rights commission on Executive’s behalf.
5.
Bar
. Executive acknowledges and agrees that if he should hereafter make any claim or demand or commence or threaten to commence any action, claim or proceeding against the Releasees with respect to any cause, matter or thing which is the subject of the release under Section 4 of this Release, this Release may be raised as a complete bar to any such action, claim or proceeding, and the applicable Releasee may recover from Executive all costs incurred in connection with such action, claim or proceeding, including attorneys’ fees, along with the benefits set forth in Section 2 of the Release.
6.
Governing Law
. This Release shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts of laws principles.
7.
Acknowledgment
. Executive has read this Release, understands it, and voluntarily accepts its terms, and Executive acknowledges that he has been advised by the Company to seek the advice of legal counsel (at Executive’s cost) before entering into this Release. Executive acknowledges that he was given a period of 21 calendar days within which to consider and execute this Release, and to the extent that he executes this Release before the expiration of the 21-day period, he does so knowingly and voluntarily and only after consulting his attorney. Executive acknowledges and agrees that the promises made by the Company Group hereunder represent substantial value over and above that to which Executive would otherwise be entitled. Executive acknowledges and reconfirms the promises in Sections 8, 9, 10, 11 and 12 of the Employment Agreement.
8.
Revocation
. Executive has a period of 7 calendar days following the execution of this Release during which Executive may revoke this Release by delivering written notice to the Company pursuant to Section 14 of the Employment Agreement, and this Release shall not become effective or enforceable until such revocation period has expired. Executive understands that if he revokes this Release, it will be null and void in its entirety, and he will not be entitled to any payments or benefits provided in this Release, including without limitation under Section 2 of the Release.
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9.
Miscellaneous
. This Release is the complete understanding between Executive and the Company Group in respect of the subject matter of this Release and supersedes all prior agreements relating to Executive’s employment with the Company Group, except as specifically excluded by this Release. Executive has not relied upon any representations, promises or agreements of any kind except those set forth herein in signing this Release. In the event that any provision of this Release should be held to be invalid or unenforceable, each and all of the other provisions of this Release shall remain in full force and effect. If any provision of this Release is found to be invalid or unenforceable, such provision shall be modified as necessary to permit this Release to be upheld and enforced to the maximum extent permitted by law. Executive agrees to execute such other documents and take such further actions as reasonably may be required by the Company Group to carry out the provisions of this Release.
10.
Counterparts
. This Release may be executed by the parties hereto in counterparts, which taken together shall be deemed one original.
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GLOBAL POWER EQUIPMENT
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EXECUTIVE
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GROUP INC.
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[Form of release – Do not sign]
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By:
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Terence J. Cryan
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Its:
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