EX-10.15 3 x45366a3ex10-15.txt FORM OF EXCHANGE AGREEMENT 1 EXHIBIT 10.15 EXCHANGE AGREEMENT This EXCHANGE AGREEMENT (this "Agreement") is entered into as of May __, 2001, by and among Global Power Equipment Group Inc. (the "Company"), a Delaware corporation, and each of the Persons named on Schedule I attached hereto (each such Person, a "Purchaser" and, collectively, the "Purchasers"). Capitalized terms used and not otherwise defined herein shall have the respective meaning given such term in the Limited Liability Company Agreement of GEEG Holdings, L.L.C. ("GHLLC"), a Delaware limited liability company, dated as of August 1, 2000. W I T N E S S E T H: WHEREAS, each Purchaser owns the number of Preferred Units and Class A Common Units (collectively, with respect to such Purchaser, "Units") in GHLLC set forth opposite such Purchaser's name on Schedule I attached hereto; WHEREAS, each Purchaser desires to contribute such Purchaser's Units to the Company in exchange for shares of common stock (the "Common Stock"), par value $0.01 per share, of the Company; WHEREAS, the Company desires to issue shares of Common Stock to each such Purchaser in exchange for all of such Purchaser's Units; and WHEREAS, with respect to each Purchaser other than GEEG Acquisition Holdings Corp., the parties hereto intend for the transactions contemplated hereby to qualify as a tax free contribution under Section 351(d) of the Internal Revenue Code of 1986, as amended (the "Code") and, with respect to GEEG Acquisition Holdings Corp., the parties hereto intend for the transactions contemplated hereby to qualify as a tax free reorganization under Section 368(a)(1) of the Code. NOW, THEREFORE, in consideration of the mutual agreements herein contained and the mutual benefits hereby provided, the Company and the Purchasers, intending to be bound legally, hereby agree as follows: Section 1. Exchanges of Units for Common Stock. 1.1. Exchanges. Subject to the terms and conditions hereinafter set forth, each Purchaser hereby agrees to transfer to the Company such Purchaser's Units and the Company hereby agrees to issue to such Purchaser shares of Common Stock as follows: (a) Each Common Unit shall be exchanged for a number of shares of Common Stock equal to the amount obtained when one (1) is multiplied by the quotient resulting from dividing (i) the value of the Company (as determined by the underwriters in connection with the initial public offering (the "IPO") of shares of Common Stock), less the aggregate of the gross cash proceeds received by the Company in the IPO and the aggregate capital contribution with respect to the Preferred Units, divided by the 2 aggregate amount of issued and outstanding Common Units and Common Units into which employee stock options granted pursuant to the 2000 Option Plan are exercisable on the date of consummation of the IPO (the "Effective Date") by (ii) the price per share at which shares of Common Stock will be offered in the IPO; and (b) Each Preferred Unit shall be exchanged for the number of shares of Common Stock equal to the amount obtained when one hundred (100) is divided by the price per share at which shares of Common Stock will be offered in the IPO. 1.2. No Fractional Shares. No fractional shares of Common Stock of the Company shall be issued under this Agreement and any fractional share interests will not entitle the owner thereof to vote or to have any rights of a holder of Common Stock of the Company. In lieu of any such fractional shares, each holder of shares of Common Stock of the Company who would otherwise have been entitled to a fraction of a share of Common Stock of the Company shall be paid an amount in cash (without interest) equal to the product of (i) such fractional part of a share of Common Stock of the Company multiplied by (ii) the price per share at which shares of Common Stock will be offered in the IPO. As promptly as practicable after the determination of the amount of cash, if any, to be paid to holders of fractional interests, the Company will forward payments to such holders of fractional interests subject to and in accordance with the terms hereof. 1.3. Closing. The exchanges referred to in Section 1.1 (the "Closing") shall take place at the offices of White & Case LLP, 1155 Avenue of the Americas, New York, New York 10036, or such other place as shall be mutually agreed to by the parties hereto, on such date and time as shall be mutually agreed to by the parties hereto. Such date is herein referred to as the "Closing Date." Section 2. Representations of the Purchasers Each Purchaser represents and warrants to the Company as follows: 2.1. Such Purchaser represents that such Purchaser is not acquiring the Common Stock with a view to, or for resale in connection with, any distribution of the Common Stock in violation of the Securities Act of 1933 (the "Securities Act"). Such Purchaser understands that the Common Stock has not been registered under the Securities Act or the securities laws of any state and that the Common Stock has been issued to such Purchaser by reason of specific exemptions under the provisions thereof which depend in part upon the investment intent of such Purchaser and upon the other representations made by such Purchaser in this Agreement. Such Purchaser understands that the Company is relying upon the representations and agreements made by such Purchaser in this Agreement. 2.2. Such Purchaser understands that such Purchaser may not sell or transfer the Common Stock purchased pursuant to this Agreement unless the Common Stock is registered pursuant to the requirements of the Securities Act and of any applicable state or "blue sky" securities laws or regulations, or, if required by the Company, such Purchaser furnishes an opinion of counsel, in form and substance satisfactory to the Company, to the effect that registration is not then required under the Securities Act or under any applicable state or "blue sky" securities laws -2- 3 or regulations. Such Purchaser further understand that the Company has no obligation or present intention of so registering the Common Stock, and that there is no assurance that any exemption from registration under the Securities Act will be available or, if available, that such exemption will allow such Purchaser to dispose of or otherwise transfer any or all of the shares of Common Stock in the amounts or at the times that such Purchaser may propose. 2.3. Such Purchaser (i) has such knowledge, sophistication and experience in business and financial matters that such Purchaser is capable of evaluating the merits and risks of the exchange referred to in Section 1.1 hereof, (ii) fully understands the nature, scope and duration of the limitations applicable to the Common Stock, (iii) is able to bear the economic risk of the exchange referred to in Section 1.1 hereof, and (iv) is an "Accredited Investor" as defined in Regulation D under the Securities Act. Section 3. Miscellaneous 3.1. Effectiveness. This Agreement shall be effective as of 12:01 AM on the Effective Date. 3.2. Legend. So long as applicable, each certificate representing any portion of the shares of Common Stock shall be stamped or otherwise imprinted with a legend in the following form: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the "Securities Act"), and such securities may not be offered, sold, pledged or otherwise transferred except (1) pursuant to an exemption from, or in a transaction not subject to, the registration requirements under the Securities Act or (2) pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable securities laws of any State of the United States." After the above requirement for a legend is no longer applicable because the shares of Common Stock are freely transferable under the Securities Act, the Company shall remove such legend upon request from a holder of such shares of Common Stock, if outside counsel for such holder reasonably determines that the transfer of such shares of Common Stock is no longer restricted by the Securities Act and the general counsel of the Company reasonably concurs in such determination. 3.3. Termination, Waiver, Amendment. Neither this Agreement nor any provisions hereof shall be waived, modified, changed, discharged or terminated except by an instrument in writing signed by the party against whom such waiver, modification, change, discharge or termination is sought; provided, however, that if the transactions contemplated by this Agreement are not consummated by August 31, 2001, this Agreement shall terminate. 3.4. Assignability. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by either the Company or any Purchaser, without the prior written consent of the other parties hereto (in the case of a proposed assignment by the Company) or the Company (in the case of a proposed assignment by such Purchaser). -3- 4 3.5. Power of Attorney. (a) Each Purchaser, by its execution hereof, hereby irrevocably makes, constitutes and appoints the Board of Directors as its true and lawful agent and attorney-in-fact, with full power of substitution and full power and authority in its name, place and stead to make, execute, sign, acknowledge, swear to, record and register all certificates and other instruments deemed advisable by the Board of Directors to carry out the provisions of this Agreement. (b) The foregoing power of attorney: (i) is coupled with an interest, shall be irrevocable and shall survive the death, incapacity or bankruptcy of each Purchaser; and (ii) may be exercised by the Board of Directors either by authorizing a Person to sign separately as attorney-in-fact for each Purchaser or, after listing all of the Purchasers executing an instrument, by a single signature of a Person authorized by the Board of Directors acting as attorney-in-fact for all of them. 3.6. Severability. If any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof. 3.7. Section and Other Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 3.8. Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior arrangements or understandings (whether written or oral) with respect thereto. 3.9. Counterparts. For the convenience of the parties, any number of counterparts of this Agreement may be executed by the parties hereto and each such executed counterpart shall be deemed to be an original instrument. 3.10. Notices. All notices and other communications provided for herein and all legal process in regard hereto shall be validly given, made or served, if in writing and delivered by personal delivery, overnight courier, telecopier or registered or certified mail, return-receipt requested and postage prepaid addressed as follows: -4- 5 If to a Purchaser, to: The address set forth under such Purchaser's name on Schedule I attached hereto If to the Company, to: Global Power Energy Group Inc. c/o Harvest Partners, Inc. 280 Park Avenue, 33rd Floor New York, NY 10017 Attention: Stephen Eisenstein Any such communication shall be deemed given, made or served as of the date so delivered or, in the case of any communication delivered by mail, as of the date so received. 3.11. GOVERNING LAW. THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO SUCH STATE'S CHOICE OF LAW PROVISIONS. * * * * * -5- 6 IN WITNESS WHEREOF, the Company and each Purchaser has executed this Agreement as of the date first written above. GEEG ACQUISITION HOLDINGS CORP. By: ---------------------------- Name: Title: 7 [Signature page for this Exchange Agreement] GEEG ACQUISITION HOLDINGS LLC By: ---------------------------- Name: Title: 8 [Signature page for this Exchange Agreement] GLOBAL POWER EQUIPMENT GROUP INC. By: ----------------------------- Name: Title: 9 [Signature page for this Exchange Agreement] SMC POWER HOLDINGS, L.L.C. By: ----------------------------- Name: Title: 10 [Signature page for this Exchange Agreement] SAW MILL INVESTMENTS, L.L.C. By: ----------------------------- Name: Title: 11 [Signature page for this Exchange Agreement] CASCADE INVESTMENT PARTNERS, L.L.C. By: ----------------------------- Name: Title: 12 [Signature page for this Exchange Agreement] PARIBAS PRINCIPAL INCORPORATED By: ----------------------------- Name: Title: 13 [Signature page for this Exchange Agreement] INDOSUEZ GEEG PARTNERS By: ----------------------------- Name: Title: 14 [Signature page for this Exchange Agreement] By: ----------------------------- William M. Gerstner 15 [Signature page for this Exchange Agreement] By: ----------------------------- Larry Edwards 16 [Signature page for this Exchange Agreement] By: ----------------------------- Gary Obermiller 17 [Signature page for this Exchange Agreement] By: ----------------------------- Gene Schockemoehl 18 [Signature page for this Exchange Agreement] By: ----------------------------- Michael Hackner 19 [Signature page for this Exchange Agreement] By: ----------------------------- James Wilson 20 [Signature page for this Exchange Agreement] By: ----------------------------- Jack Silver 21 [Signature page for this Exchange Agreement] By: ----------------------------- Albert Breuer 22 [Signature page for this Exchange Agreement] By: ----------------------------- Tike Wong 23 [Signature page for this Exchange Agreement] By: ----------------------------- John Rieckman 24 [Signature page for this Exchange Agreement] By: ----------------------------- Monte Ness 25 [Signature page for this Exchange Agreement] By: ----------------------------- Kevin Zahler 26 [Signature page for this Exchange Agreement] By: ----------------------------- Jack McSweeney 27 [Signature page for this Exchange Agreement] By: ----------------------------- Bengt Sohlen 28 SCHEDULE I
Preferred Units Class A Common Purchaser Exchanged Units Exchanged --------- --------- --------------- GEEG Acquisition Holdings Corp. [Address] 558,517.44 620,575.3 GEEG Acquisition Holdings LLC [Address] 248,850.00 276,500.0 SMC Power Holdings, L.L.C. [Address] 24,423.81 27,137.5 Saw Mill Investments, L.L.C. [Address] 26,263.32 29,181.5 Cascade Investment Partners, L.L.C. [Address] 8,100.00 9,000.0 Paribas Principal Incorporated [Address] 15,157.63 16,841.8 Indosuez GEEG Partners [Address] 13,137.09 14,596.8 William M. Gerstner [Address] 2,918.15 3,242.4 Larry Edwards [Address] 20,120.06 22,355.6 Gary Obermiller [Address] 15,638.32 17,375.9 Gene Schockemoehl [Address] 14,916.36 16,573.7
29 Schedule I Page 2 Michael Hackner [Adress] 8,130.44 9.033.8 James Wilson [Address] 6,965.30 7,739.2 Jack Silver [Address] 4,626.12 5,140.2 Albert Breuer [Address] 4,515.06 5,016.7 Tike Wong [Address] 4,415.65 4,906.3 John Rieckman [Address] 4,570.59 5,078.5 Monte Ness [Address] 4,920.47 5,467.2 Kevin Zahler [Address] 4,781.63 5,312.9 Jack McSweeney [Address] 18,000.00 20,000.0 Bengt Sohlen [Address] 0 1,205.0