Exhibit 10.4
EXECUTION COPY
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of March 5, 1998 between Grove Worldwide
LLC, a Delaware limited liability company ("Grove"), and Xxxxxxxxx X. Xxxxxxx
("Executive").
WHEREAS, Grove Investors LLC, a Delaware limited liability company (the
"Parent"), Grove Holdings LLC, a Delaware limited liability company
("Holdings"), and Grove (collectively, the "Company") desire that Grove employ
Executive and enter into an agreement embodying the terms of such employment
(the "Agreement"); and
WHEREAS, Executive desires to accept such employment and enter into such
an Agreement;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein and for other good and valuable consideration, the parties agree as
follows:
1. Term of Employment. Executive shall be employed by Grove for a period
commencing on the date of closing (the "Closing") of Grove's acquisition of
stock and/or assets constituting the Grove Worldwide businesses directly or
indirectly owned by Xxxxxx PLC (the "Business") and ending at the end of the day
before the second anniversary of the date of the Closing. The term of this
Agreement (the "Employment Term") shall be extended for successive two-year
periods thereafter unless Executive's employment is earlier terminated pursuant
to Section 9
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or unless Executive or Grove shall have given notice of its intention not to
extend the Employment Term not later than six months prior to the end of any
such two-year period (including the initial two-year period).
2. Position.
(a) Executive shall serve as Chief Executive Officer of Grove.
Executive shall be responsible for directing and overseeing all operations of
Grove, shall at all times be the highest ranking officer of Grove, and shall
otherwise perform such duties and exercise such powers commensurate wit his
position as shall be reasonably determined from time to time by the Board of
Directors of Grove (the "Grove Board"). Executive shall report directly to the
Grove Board. Executive's principal place of employment shall be the executive
offices of Grove which are presently located in Shady Grove, Pennsylvania, and
Executive shall perform his duties hereunder principally from such executive
offices of Grove, subject to reasonable travel requirements.
(b) During the Employment Term, Executive shall devote all of his
business time and best efforts to the performance of his duties hereunder and
shall not engage in any other business, profession or occupation for
compensation or otherwise, without the prior written consent of the Grove Board,
with the sole exception that Executive may continue to serve as a member of the
Board of Directors of Foamex International Inc., provided that such service does
not interfere with Executive's ability or availability to perform his duties
hereunder. Nothing in this provision shall limit or restrict Executive from
performing uncompensated services for or serving on the board of, any
charitable, religious or non-profit organization, so
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long as it does not interfere with Executive's ability or availability to
perform his duties hereunder, and consent of the Grove Board shall not be
required therefor.
3. Base Salary. Subject to Section 9, during the Employment Term Grove
shall pay Executive a base salary at the initial rate of $500,000 per annum,
payable in installments in accordance with the usual payment practices of Grove.
For fiscal years of Grove beginning after the Closing, Executive shall be
entitled to such increases, if any, in his base salary as may be determined from
time to time in the sole discretion of the Grove Board. Executive's base salary,
as in effect from time to time, is hereinafter referred to as the "Base Salary."
4. Additional Payments.
(a) Additional Bonus. Grove shall pay to Executive $450,000 in cash
on each of March 31, 1999 and March 31, 2000, provided that Executive has not
voluntarily terminated his employment hereunder (other than for Good Reason) and
Executive's employment has not been terminated by Grove for Cause on or prior to
each such payment date.
(b) Payment for Stock Options. No later than 120 days following the
Closing, Grove shall pay to Executive an amount in cash equal to the positive
difference, if any, between the fair market value of shares of stock of the
company for which Executive was employed next preceding his employment by Grove
(the "Previous Employer") under option to Executive which were not exercisable
by Executive as of the announcement of Executive's termination of employment for
the Previous Employer (the "Announcement") and the exercise price for such stock
under such options. The parties agree that as of the Announcement there were
44,754 such
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shares under option at an exercise price of $6 7/8 per share and 50,000 such
shares under option at an exercise price of $11 1/8 per share. For purposes of
this paragraph, the fair market value of a share of stock of the Previous
Employer shall be the average closing price of a share of the Previous
Employer's stock on the stock exchange on which such shares are principally
traded for the ten trading days prior to the Announcement or, if a going-private
transaction is announced within 90 days of the Announcement, the price paid for
a share of stock of the Previous Employer in such transaction.
(c) Relocation Costs. Grove shall purchase Executive's home at the
address listed on the signature page hereto from Executive for $675,000, which
represents the cost of such home to Executive plus the cost to Executive of all
improvements to such home which could be added to Executive's cost basis in such
home Grove shall reimburse Executive for his reasonable costs of relocating to
the Shady Grove, Pennsylvania area in accordance with Grove's executive
relocation policy.
5. Cash Incentive Compensation. During the Employment Term with respect to
each fiscal year of Grove ending after the Closing (each a "Fiscal Year"),
Executive shall be entitled to earn and be paid by Grove cash incentive
compensation ("Incentive Compensation"), subject to his continued employment at
the end of such Fiscal Year and the attainment of financial objectives developed
by the Grove Board, all under the terms of a Short Term Incentive Plan to be
established by Grove (the "STIP") attached hereto as Exhibit A. The Target Bonus
for the Executive under the STIP for a Fiscal Year shall be 100% of the
Executive's Base
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Salary paid during such Fiscal Year. Under no circumstances may Executive's
Target Bonus for a year be reduced below 100% of his Base Salary for such year.
If there is any inconsistency between the terms of the STIP and the terms of
this Employment Agreement, the terms of this Employment Agreement shall control.
6. Employee Benefits, Business Expenses and Perquisites. During
Executive's employment hereunder, Executive shall be provided employee benefits
(including, without limitation, fringe benefits, vacation, retirement plan
participation, life, health, accident and disability insurance and tax
preparation) (collectively, "Employee Benefits"). Reasonable travel,
entertainment and other business expenses incurred by Executive in the
performance of his duties hereunder shall be reimbursed by Grove in accordance
with Grove's policies as in effect from time to time. During Executive's
employment hereunder, Grove shall pay for Executive's initiation and membership
fees in a country club of Executive's choice in the Shady Grove, Pennsylvania
area.
7. Securities Investment.
(a) On the Closing Date, Executive shall purchase from Holdings a
common membership interest in Holdings for a minimum aggregate purchase price of
$1,500,000 (the "Aggregate Purchase Price") at the same price per Common
Interest as paid by the Parent at the Closing. Such purchased interest is
hereinafter referred to as the "Purchased Interest."
(b) Grove shall provide a loan to Executive in an amount to be
agreed upon between Grove and Executive. The loan shall be evidenced by a full
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recourse note in the form attached as Exhibit B hereto (the "Note") and by a
Loan and Pledge Agreement in the form of Exhibit C hereto (the "Pledge
Agreement").
8. Stock Options.
(a) As of the Closing Date Grove shall grant to Executive, pursuant
to a Management Option Plan (the "Option Plan") to be adopted by Holdings, a
nonqualified option (the "Option") to purchase units of membership interest in
Holdings equal to 2.0% of the total common membership interests in Holdings
(determined as of the Closing Date, and after giving effect to the interests
represented by all purchased equity) (the "Option Interest") at a per unit
exercise price (the "Exercise Price") equal to the Parent's per unit cost to
acquire Holdings pursuant to the Purchase Agreement. The terms of the Option
shall be determined under the Option Plan, attached hereto as Exhibit E. Upon
exercise of the Option, (i) Executive's capital account in Holdings shall be
credited with the exercise price paid by Executive and (ii) Executive shall be
entitled to receive special priority allocations of income under the LLC
Agreement so as to cause Executive's capital account balance to be proportionate
(by reference to percentage interests) to the capital account balances
associated with the other equity holders of Holdings. The LLC Agreement shall
provide for such special allocations. This special priority allocation will be
subordinate to the priority allocations in favor of other investors for the
purpose of restoring losses to their capital accounts. If there is any
inconsistency between the terms of the Option Plan and the terms of this
Employment Agreement, the terms of this Employment Agreement shall control.
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(b) During Executive's employment on and after March 13, 2006,
Executive may elect to sell to Grove some or all of the Common Interests
purchased by him pursuant to the Option Plan by so notifying Grove, provided
that Grove shall not be required to purchase Common Interests pursuant to this
section with a Fair Market Value in excess of $10 million in any 12-month
period. The purchase price for such Common Interests shall be the Fair Market
Value (as defined in the Option Plan) of such Common Interests on the date of
such sale to Grove.
9. Termination.
(a) For Cause by Grove. (i) Executive's employment hereunder may be
terminated by Grove for "Cause." For purposes of this Agreement, "Cause" shall
mean (I) Executive's failure substantially to perform his duties hereunder or to
follow reasonable, lawful directions of the Grove Board, (II) willful misconduct
or willful malfeasance by Executive in connection with his employment, (III)
Executive's conviction of, or plea of nolo contendere to, any crime constituting
a felony under the laws of the United States or any State thereof, or any other
crime involving moral turpitude or (IV) Executive's material breach of any of
the provisions of this Agreement or the LLC Agreement (or any successor
Agreement). A termination described in clause (III) shall be effective
immediately, and a termination described in clause (I), (II) or (IV) shall be
subject to the following procedures: after receiving the notice, Executive shall
have 10 business days to respond to the notice by either curing the defect or
providing his version or explanation of events. If, notwithstanding Executive's
response, Grove still wishes to terminate Executive's employment for Cause, it
may do so following such 10 business
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day period. Such notice must specify why Grove continues to believe Executive is
guilty of the alleged conduct.
(ii) If Executive is terminated for Cause, he shall be
entitled to receive his Base Salary through the date of termination (together
with any Incentive Compensation earned with respect to any previously completed
Fiscal Year which remains unpaid as of such date of termination) and Executive
shall be entitled to no other salary or Incentive Compensation payments under
this Agreement. Any benefits or payments under any other agreement (including
those attached hereto) or employee benefit plan of Grove shall be determined
under the terms of such other agreement or benefit plan.
(b) Disability or Death. (i) Executive's employment hereunder shall
terminate upon his death or, upon 30 days' notice before or after the completion
of the relevant time period, if Executive becomes physically or mentally
incapacitated and is therefore unable (or will as a result thereof, be unable)
for a period of six consecutive months or for an aggregate of nine months in any
18 consecutive month period to perform the essential functions of his job, with
reasonable accommodations (such incapacity is hereinafter referred to as
"Disability"). Any question as to the existence of a Disability as to which
Executive and Grove cannot agree shall be determined in writing by a qualified
independent physician mutually acceptable to Executive and Grove. If Executive
and Grove cannot agree as to a qualified independent physician, each shall
appoint such a physician and those two physicians shall select a third who shall
make such determination in writing. The determination of Disability made in
writing to Grove and Executive shall be final and
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conclusive for all purposes of the Agreement. During the period when such
determination is being made, Executive shall remain an employee and be
compensated as such in full; provided that Executive does not unduly prolong or
delay such determination.
(ii) Upon termination of Executive's employment hereunder
during the Employment Term for Disability, Executive shall receive from Grove
(x) his Base Salary (at the rate in effect immediately prior to his termination
of employment) through the end of the month in which such termination occurs,
(y) any Incentive Compensation earned with respect to any previously completed
Fiscal Year which remains unpaid as of such date of termination, and (z) a
pro-rata amount of any Incentive Compensation that would otherwise become due in
respect of the Fiscal Year in which such termination occurs based on the number
of days in such Fiscal Year during which Executive was employed prior to the
termination of employment, calculated in a manner consistent with the STIP and
to be paid to Executive as of the date such Incentive Compensation would
otherwise have been payable. Executive shall be entitled to no other salary or
Incentive Compensation payments under this Agreement. Any benefits or payments
under any other agreement (including those attached hereto) or employee benefit
plan of Grove shall be determined under the terms of such other agreement or
benefit plan.
(iii) Upon termination of Executive's employment hereunder
during the Employment Term as a result of death, Executive's estate shall
receive from Grove (x) his Base Salary at the rate in effect at the time of
Executive's death through the end of the month in which his death occurs, (y)
any Incentive
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Compensation earned with respect to any previously completed Fiscal Year which
remains unpaid as of such date of termination, and (z) a pro-rata amount of any
Incentive Compensation that otherwise would become due in respect of the Fiscal
Year in which such termination occurs based on the number of days in such Fiscal
Year during which Executive was employed prior to the termination of employment,
calculated in a manner consistent with the STIP and to be paid to Executive as
of the date such Incentive Compensation would otherwise have been payable.
Executive's estate shall be entitled to no other salary or Incentive
Compensation payments under this Agreement. Any benefits or payments under any
other agreement (including those attached hereto) or employee benefit plan of
Grove shall be determined under the terms of such other agreement or benefit
plan.
(c) Without Cause by Grove or For Good Reason. (i) Executive's
employment may be terminated by Grove other than for Cause during the Employment
Term on 10 business days' written notice. If Executive's employment is
terminated by Grove without Cause (other than by reason of Disability or death)
or by Executive for Good Reason (as defined below), Executive shall receive (w)
continued payment of Base Salary at the rate in effect immediately prior to such
termination for 24 months following such termination, (x) any Incentive
Compensation earned with respect to any previously completed Fiscal Year which
remains unpaid as of such date of termination, (y) an amount of any Incentive
Compensation determined based on monthly EBITDA Targets (as defined in the
STIP), actual results and Base Salary, in each case paid for the completed
months of employment during the Fiscal Year in which such termination occurs
paid within 30 days following such termination and
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(z) monthly payments for 24 months equal to 1/12 of Executive's Target Bonus
amount in effect for the year of termination of employment, regardless of actual
operating results during such period. Executive shall be entitled to no other
salary or Incentive Compensation payments under this Agreement. Any benefits or
payments under any other agreement (including those attached hereto) or employee
benefit plan of Grove shall be determined under the terms of such other
agreement or benefit plan.
(ii) For purposes of this Agreement, "Good Reason" shall mean
(A) Any material breach by Grove of the provisions of
this Agreement, including but nor limited to, any reduction by Grove in
Executive's Base Salary or Incentive Compensation opportunity described in
Section 4 to which Executive does not consent;
(B) Any material diminution in Executive's job duties or
responsibilities; or
(C) The relocation of the principal executive offices of
Grove to a location more than 30 miles outside of Shady Grove, Pennsylvania;
provided that any event described above shall not be deemed to constitute Good
Reason unless Executive shall have notified Grove in writing of the occurrence
of such event(s) and Grove shall have failed to have cured or taken steps to
cure such event(s) within 10 business days of its receipt of such written
notice.
(d) Termination by Executive. If Executive terminates his employment
with Grove for any reason (other than for Good Reason) during the
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Employment Term, Executive shall be entitled to the same payments he would have
received if his employment had been terminated by Grove for Cause.
(e) Limitation on Certain Payments. In the event Grove reasonably
determines that any amount to be paid to Executive following his employment
under this Agreement or under any other plan or agreement of Grove constitutes a
"parachute payment" under Code section 280G(b)(2), then the amount payable
hereunder and/or under any other plan or agreement of Grove shall be reduced to
the extent Grove reasonably determines to be necessary to ensure that all
amounts payable to Executive are fully deductible by Grove and not subject to
the excise tax described in Code section 4999.
(f) Termination of Agreement Term. Upon the termination of the
Employment Term pursuant to Section 1, Executive's employment shall end. If the
termination of the Employment Term was initiated by Grove, it shall be treated
as Termination of Employment without Cause. If the termination of the Employment
Term was initiated by Executive, it shall be treated as Termination by Executive
Without Good Reason. Upon termination of the Employment Term, Grove shall have
no further obligations to Executive other than to make the payments described in
Section 9. Any continuation of Executive's employment beyond the end of the
Employment Term shall be employment at will which may be terminated by Grove or
Executive at any time and shall not extend any of the provisions of this
Agreement, provided, however, that the provisions of Sections 10, 11, 12 and
13(a) through (d) shall survive any termination of the Employment Term or this
Agreement.
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(g) Notice of Termination Any termination of employment or, pursuant
to Section 9(f), this Agreement by Grove or by Executive shall be communicated
by written Notice of Termination to the other party hereto in accordance with
Section 13(i) hereof. For purposes of this Agreement, a "Notice of Termination"
shall mean a notice which shall indicate the specific termination provision in
this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of employment under
the provision so indicated.
(h) Mitigation. Following the termination of his employment under
any of the above clauses of this Section 9, Executive shall have no obligation
to seek subsequent employment. If Executive does obtain subsequent employment,
Grove shall nevertheless be required to pay Executive in full as set forth
above, and there shall be no offset for monies received by Executive from any
subsequent employment or from any other source.
10. Non-Competition. (a) Executive recognizes that the services to be
performed by him hereunder are special, unique and extraordinary and that, by
reason of his employment hereunder, Executive will acquire confidential
information and trade secrets concerning the operation of Grove. Accordingly,
for all purposes hereunder or in respect hereof, Executive agrees that during
the term of his employment hereunder and for a period of 24 months following
such termination of employment Executive will not, directly or indirectly, as an
officer, director, stockholder, partner, member, associate, employee,
consultant, owner, agent, creditor, co-venturer or otherwise, become or be
interested in or be associated with
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any other corporation, firm or business engaged, in any geographical area in
which Grove is engaged during the term of his employment or at the date of his
termination of employment, in a "Competitive Business" with that of Grove at
such time. A Competitive Business shall mean any business which derives 30% or
more of its revenue directly or indirectly from designing, manufacturing,
selling and/or providing customer support for, mobile hydraulic cranes,
self-propelled aerial work platforms and truck-mounted cranes. Executive's
ownership, directly or indirectly, of not more than five percent of the issued
and outstanding stock of any corporation, the shares of which are regularly
traded on a national securities exchange or in the over-the-counter market,
shall not in any event be deemed to be a violation of the provisions of this
Section 10 and the ownership of securities by Executive of Grove shall not be
deemed to be a violation of this Section 10. For purposes of this Section 10 the
term "Grove" shall also mean any affiliate (as such term is defined in Rule 144
promulgated under the Securities Act of 1933, as amended, or any successor rule)
of Grove.
(b) Executive agrees, during the period set forth in paragraph (a),
that be shall not, on behalf of himself or any business he is interested in or
associated with, employ or otherwise engage, or seek to employ or engage, any
senior executive (i.e., direct reports) employed by Grove at any time during the
preceding 12 months.
(c) It is expressly understood and agreed that although Executive
and Grove consider the restrictions contained in this Section 10 to be
reasonable, if a final judicial determination is made by a court of competent
jurisdiction that the time or territory or any other restriction contained in
this
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Agreement is an unenforceable restriction against Executive, the provisions of
this Agreement shall not be rendered void but shall be deemed amended to apply
as to such maximum time and territory and to such maximum extent as such court
may judicially determine or indicate to be enforceable. Alternatively, if any
court of competent jurisdiction finds that any restriction contained in this
Agreement is unenforceable, and such restriction cannot be amended so as to make
it enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.
11. Confidentiality. Executive will not at any time (whether during or
after his employment with Grove) disclose or use for his own benefit or purposes
or the benefit or purposes of any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise other than Grove, any trade secrets, information, data, or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of Grove generally, and shall not make disparaging
statements about Grove, its businesses, products, officers, employees or owners;
provided, that the foregoing shall not apply (i) to information which is not
unique to Grove or which is generally known to the industry or the public other
than as a result of Executive's breach of this covenant, (ii) to information,
the disclosure of which Executive did not know, and did not have reason to know,
could be damaging to the reputation or business and affairs of Grove, (iii) to
information which Executive is required to disclose to any governmental or
judicial authority, (iv) to
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information that could be lawfully obtained, compiled or recreated by a third
party unaffiliated with Grove for a reasonable cost and with reasonable effort;
or (v) information known to Executive prior to his employment with Grove.
Executive agrees that upon termination of his employment with Grove for any
reason, be will return to Grove immediately all memoranda, books, papers, plans,
information, letters and other data, and all copies thereof or therefrom, in any
way relating to the business of Grove, except that he may retain personal notes,
notebooks calendars, address books and diaries. Executive further agrees that he
will not retain or use for his account at any time any trade names, trademark or
other proprietary business designation used or owned in connection with the
business of Grove. For purposes of this Section 11, the term "Grove" shall also
mean any affiliate (as such term is defined in Rule 144 under the Securities Act
of 1933, as amended or any successor rule) of Grove; provided that the
restrictions set forth in this Section 11 shall only apply to Grove's
"affiliates" with respect to confidential information disclosed to Executive in
the performance of his duties hereunder.
12. Specific Performance. Executive acknowledges and agrees that Grove's
remedies at law for a breach or threatened breach of any of the provisions of
Section 10 or 11 would be inadequate and, in recognition of this fact, Executive
agrees that, in the event of such a breach or threatened breach, in addition to
any remedies at law, Grove shall be entitled to obtain equitable relief in the
form of specific performance. temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available;
provided however, the foregoing shall not prevent Executive from contesting the
issuance of any such
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injunction on the ground that no violation or threatened violation of Section 10
or 11 has occurred.
13. Miscellaneous.
(a) LLC Agreement. Executive hereby acknowledges that any membership
interest in Grove acquired by Executive pursuant to Section 7 or the Option
described in Section 8 shall be held by Executive subject to the terms and
conditions of the LLC Agreement or any successor agreement thereto. To the
extent the provisions of this Agreement and the Agreements described in the
Exhibits hereto are more restrictive than the provisions set forth in the LLC
Agreement, the provisions of this Agreement and the Agreements described in the
Exhibits hereto shall control.
(b) Other Obligations/Representation by Counsel. Executive
represents and warrants that neither Executive's execution of this Agreement nor
Executive's performance of Executive's obligations hereunder will conflict with,
violate or otherwise be inconsistent with any other contractual obligation,
other than pursuant to the Employment Agreement dated June 26, 1995 between
Executive and the Previous Employer, or, to the best of his knowledge, any other
obligation, that would prohibit Executive from entering into or performing any
of his obligations under this Agreement. Executive represents that he has been
fully represented by counsel in negotiating and entering into this Agreement.
The provisions of this paragraph 13(b) shall survive any termination of this
Agreement.
(c) Governing Law/Arbitration. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
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Any controversy or claim arising out of or relating to this Agreement shall be
determined by arbitration conducted in New York in accordance with the
Commercial Rules of the American Arbitration Association then obtaining, and
judgment upon any award rendered may be entered in any court having jurisdiction
thereof. The decision of the arbitrators shall be final and binding upon the
parties hereto.
(d) Indemnification. To the full extent not inconsistent with
applicable law and the Parent's, Holdings' and Grove's governing documents, in
the event that Executive is a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director, officer,
employee or agent of Grove, or is or was serving at the request of Grove, as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, Grove, shall indemnify Executive and hold
him harmless, against all expenses (including reasonable costs and attorneys'
fees), judgments, fines and amounts paid in settlement (with Grove's consent,
not to be unreasonably withheld) actually and reasonably incurred by him, as and
when incurred, in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of Grove and, with respect to any criminal action or proceeding
reasonably did not believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that Executive did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interest of Grove, or
that, with respect to any
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criminal action or proceeding, Executive reasonably believed that his conduct
was unlawful. The provisions of this Section 13(d) shall not be deemed exclusive
of any other rights of indemnification to which Executive may be entitled or
which may be granted to him, and it shall be in addition to any rights of
indemnification to which he may be entitled under any policy of insurance. These
provisions shall continue in effect after Executive has ceased to be an officer
or director of Grove.
(e) Entire Agreement/Amendments. This Agreement, including exhibits,
contains the entire understanding of the parties with respect to the employment
of Executive by Grove. There are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with respect to the
subject matter herein other than those expressly set forth herein. This
Agreement may not be amended except by written instrument signed by the parties
hereto.
(f) No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
(g) Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
(h) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the heirs and representatives of Executive and the
assigns and successors of Grove, but neither this Agreement nor any rights or
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obligations hereunder shall be assignable or otherwise subject to hypothecation
by Executive (except by will or by operation of the laws of intestate
succession) or by Grove, except that following the Closing Date, Grove may
assign this Agreement to any successor (whether by merger, purchase or
otherwise) to all or substantially all of the stock or assets of, or common
ownership interests in, the Parent, Holdings or Grove, if such successor
expressly agrees to assume, or otherwise assumes by application of law, the
obligations of Grove hereunder.
(i) Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the execution page of this Agreement and
delivered by telecopy with written confirmation of receipt thereof, provided
that all notices to Grove shall be directed to the attention of the Parent with
a copy to the Secretary of Grove, or to such other address as either party may
have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon receipt.
(j) Withholding Taxes. Grove may withhold from any amounts payable
under this Agreement such Federal, state and local taxes as may be required to
be withheld pursuant to any applicable law or regulation.
(k) Third Party Beneficiaries. Nothing in this Agreement shall
create third party beneficiary rights in any person.
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(l) Counterparts. This Agreement may be signed in counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
(m) Termination of Agreement. If the Closing fails to occur within
180 days of the signing of a definitive agreement to purchase the Business, or
if such signing does not occur within 180 days of the date of this Agreement,
this Agreement shall be of no effect.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXXXXXX X. XXXXXXX
000 Xxxxx Xxxx
Xxxx Xxxxxx, XX 00000
/s/ XXXXXXXXX X. XXXXXXX
---------------------------------------
GROVE WORLDWIDE, LLC
By: /s/ Xxxx Xxxxxx
---------------------------------------
Title: President
Grove Holdings LLC
