Exhibit 10.1 |
1. |
Base Salary. You will receive continuation of your base salary
payments, including your January 2022 merit increase, for the full Transition Period. In addition, you will receive a lump sum payment equal to fourteen (14) months monthly base salary. Subject to the 409A Limitations (defined below), such
lump sum amount shall be paid within sixty (60) days after your termination of employment at the conclusion of the Transition Period.
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2. |
Fiscal Year 2022 Annual Bonus. You will remain eligible to
earn a full Fiscal Year 2022 bonus, based on the Company’s performance. Such bonus will be calculated and paid in the same manner and at the same time as other executive officers of the Company, in accordance with the terms of the
applicable bonus program.
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3. |
2022 RSU Awards. You will receive your RSU grant that is
expected to be awarded on or about January 25, 2022.
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4. |
Medical, Dental and Visions Benefits. To the extent you are
already participating, you will remain enrolled in all current employee benefit programs during the Transition Period at your current coverages and premium payment levels, as applicable. You will also receive a lump sum payment equivalent
to the portion of the monthly premiums the Company would pay for twelve (12) months of medical, dental and vision coverage at the enrollment levels for your specific coverages in place immediately prior to completion of the Transition
Period, calculated as follows:
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Medical | $17,944.20 |
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Dental | $1,199.76 |
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Vision | $3.96 |
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TOTAL | $19,147.92 |
Subject to the 409A Limitations, such amount shall be paid within sixty (60) days after the termination of employment at the conclusion of the
Transition Period. For the avoidance of doubt, your current medical, dental and vision benefits shall not be continued after the end of the Transition Period except to the extent provided for in the applicable plan documents or in
accordance law (such as applicable COBRA coverage). Please refer to the applicable plan documents for information regarding any such continuation rights, if applicable. It is your sole responsibility to timely exercise and elect such
rights and pay any premiums related to those rights.
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5. |
Disability Benefits. You will remain enrolled in all current
long-term disability and short-term disability plans until the conclusion of the Transition Period. You will also receive a lump sum payment of $3,540.12, which is equivalent to the portion of the monthly premiums the Company would pay for
twelve (12) months of long-term disability coverage at the enrollment level for your specific coverage in place immediately prior to completion of the Transition Period. Subject to the 409A Limitations, such amount shall be paid within
sixty (60) days after your termination of employment at the conclusion of the Transition Period. For the avoidance of doubt, your long-term disability coverage shall not be continued after the end of the Transition Period except to the
extent provided for in the applicable plan documents or in accordance with applicable law. During the Transition Period, the Company will assist you with the process of converting your disability coverage pursuant to the conversion rights
specified in the applicable plan documents.
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6. |
Equity Treatment. Notwithstanding anything in your outstanding
restricted stock units (RSUs), Performance Shares and stock option agreements as of the conclusion of the Transition Period (the “Award
Agreements”) to the contrary, such Award Agreements are hereby amended, to reflect the following:
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a. |
Restricted Stock Units. Upon the conclusion of the Transition
Period, you will vest in full in all time-vesting RSUs (including all grants during Fiscal Year 2022 granted prior to the conclusion of the Transition Period ) and the shares subject to those RSUs will be paid out in accordance with the
terms of the Award Agreement as if the conclusion of the Transition Period is the last day of the Restricted Period (as defined in the Award Agreement).
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b. |
Performance Share Awards. All Performance Shares will remain
outstanding as if you remained employed following the conclusion of the Transition Period through the end of the relevant performance period set forth in the Award Agreement evidencing the Performance Shares. As a result, you will continue
to be able to vest in and earn (in full rather than pro rata) the Performance Shares based on (and subject to) the Company’s satisfaction of the performance criteria set forth in the relevant Award Agreement.
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c. |
Stock Options. You will fully vest in all unvested stock
options upon the conclusion of the Transition Period and the options will remain exercisable until the earlier of: (i) the latest date upon which the stock option would have expired by its original terms (disregarding any early termination
of the option due to termination of employment), or (ii) the tenth (10th) anniversary of the original date of grant of the stock option.
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d. |
Supplemental Employee Retirement Plan (SERP). Subject to your
continued employment through the conclusion of the Transition Period, you be entitled to receive a full Fiscal Year 2022 contribution to the SERP and you will be fully vested in your SERP benefit. Such contribution and related distribution
shall occur as set forth in the SERP Plan document.
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7. |
Outplacement Services. The Company shall provide you with
outplacement services for six months through Lee Hecht Harrison’s International Center For Executive Options (ICEO) program.
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8. |
Additional Benefits. During the Transition Period, you will be
allowed the full use of your financial planning benefit for 2022. You also will receive your executive physical during the Transition Period, or a lump sum payment equivalent to the executive physical if you are unable to complete the
executive physical during the Transition Period. In addition, you will be permitted up to thirty (30) days after the conclusion of the Transition Period to replace the leased vehicle provided to you by the Company (which shall then be
returned to the Company in good condition subject to normal wear and tear).
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FOR ENERPAC TOOL GROUP CORP.:
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By:
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Date
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Name: Paul Sternlieb
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Title: President & Chief Executive Officer
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BY SENIOR OFFICER:
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Senior Officer Signature
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Date
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Name: Rick Dillon
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1. |
Definitions. Unless otherwise defined herein,
capitalized terms have the definitions set forth in Paragraph 25 of this Agreement.
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2. |
Duty of Loyalty. During employment with the
Company, Senior Officer shall owe the Company an undivided duty of loyalty and shall take no action adverse to that duty of loyalty. Senior Officer’s duty of loyalty to the Company includes a duty to promptly disclose to the Company
any information that might cause the Company to take or refrain from taking any action or which otherwise might cause the Company to alter its behavior. Without limiting the generality of the foregoing, Senior Officer shall promptly
notify the Company at any time that Senior Officer decides to (1) terminate employment with the Company or (2) enter into competition with the Company, as the Company may decide at such time to limit, suspend, or terminate Senior
Officer’s employment or access to the Company’s Confidential Information, Trade Secrets or customer relationships.
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3. |
Nondisclosure of Third Party Confidential Information.
During Senior Officer’s employment with the Company and after termination of employment with the Company, Senior Officer shall not use or disclose Third Party Confidential Information for as long as the relevant third party has
required the Company to maintain its confidentiality, or for so long as required by applicable law, whichever period is longer. This prohibition does not prohibit Senior Officer’s use of general skills and know-how acquired during
and prior to employment by the Company, as long as such use does not involve the use or disclosure of Third Party Confidential Information. This prohibition also does not prohibit the description by Senior Officer of Senior Officer’s
employment history and duties, for work search or other purposes, as long as such use does not involve the use or disclosure of Third Party Confidential Information.
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4. |
Non-disclosure of Trade Secrets. During and after
termination of employment with the Company, Senior Officer shall not use or disclose the Company’s Trade Secrets so long as they remain Trade Secrets. Nothing in this Agreement shall limit either (a) Senior Officer’s statutory and
other duties not to use or disclose the Company’s Trade Secrets, or (b) Company’s remedies in the event Senior Officer uses or discloses the Company’s Trade Secrets.
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5. |
Obligations Not to Disclose or Use Confidential Information.
Except as set forth herein or as expressly authorized in writing on behalf of the Company, Senior Officer agrees that while Senior Officer is employed by the Company and during the two-year period commencing on the Termination Date,
Senior Officer will not use or disclose (except in discharging Senior Officer’s job duties at the Company) any Confidential Information, whether such Confidential Information is in Senior Officer’s memory or it is set forth
electronically, in writing or other form. This prohibition does not prohibit Senior Officer’s disclosure of information after it ceases to meet the definition (Paragraph 25) of “Confidential Information,” or Senior Officer’s use of
general skills and know-how acquired during and prior to employment by the Company, as long as such use does not involve the use or disclosure of Confidential Information; nor does this prohibition restrict Senior Officer from
providing prospective employers with an employment history or description of Senior Officer’s duties with the Company, so long as Senior Officer does not use or disclose Confidential Information. Notwithstanding the foregoing, if
Senior Officer learns information in the course of employment with the Company which is subject to a law governing confidentiality or non-disclosure, Senior Officer shall keep such information confidential for so long as required by
law. This Paragraph shall not preclude employees within the meaning of the National Labor Relations Act from exercising Section 7 rights they may have to communicate about working conditions. This Paragraph shall not bar Senior
Officer from making disclosures to government entities to the extent required by applicable law or disclosures made in good faith pursuant to applicable “whistleblower” laws or regulations.
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6. |
Proprietary Creations. All Proprietary Creations
are the sole and exclusive property of the Company whether patentable or registrable or not, and Senior Officer assigns all rights, title and interest in same to the Company.
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7. |
Return of Property; No Copying or Transfer of Documents. All equipment and
all books, records, papers, notes, catalogs, compilations of information, data bases, correspondence, recordings, stored data (including data or files that exist on any personal computer or other electronic storage device), software,
and any physical items, including copies and duplicates, that Senior Officer generates or develops or which come into Senior Officer’s possession or control, which relate directly or indirectly to, or are a part of the Company’s (or
its customers’) business matters, whether of a public nature or not, shall be and remain the property of the Company (collectively “Company
Information”). Senior Officer shall deliver all equipment and Company Information, and any and all copies thereof, to the Company upon termination of employment.
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8. |
Limited Restriction on Misuse of Goodwill. For
twelve months following the Termination Date, Senior Officer shall not provide, sell or solicit the sale of a Competing Product to a Restricted Customer. This Paragraph shall not bar Senior Officer from performing clerical, menial or
manual labor.
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9. |
Limited Restriction on Assisting Misuse of Goodwill.
For twelve months following the Termination Date, Senior Officer shall not manage, direct or assist another person or entity in providing, selling or soliciting the sale of a Competing Product to a Restricted Customer. This Paragraph
shall not bar Senior Officer from performing clerical, menial or manual labor.
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10.
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Limited Restriction on Misuse of Information.
For twelve months following the Termination Date, Senior Officer shall not provide, sell or solicit the sale of a Competing Product to a Strategic Customer. This Paragraph shall not bar Senior Officer from performing clerical,
menial or manual labor.
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11.
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Limited Restriction on Assisting Misuse of Information.
For twelve months following the Termination Date, Senior Officer shall not manage, direct or assist another person or entity in providing, selling or soliciting the sale of a Competing Product to a Strategic Customer. This
Paragraph shall not bar Senior Officer from performing clerical, menial or manual labor.
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12.
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Limited Territorial Restriction – Executive and
Management Activities. For twelve months following the Termination Date, Senior Officer shall not perform services of the type Senior Officer performed for the Company during the twenty-four -month period
immediately preceding the end of Senior Officer’s employment with the Company as part of the business of selling, soliciting the sale of or providing Competing Products in the Restricted Territory. This Paragraph shall not bar
Senior Officer from performing clerical, menial or manual labor.
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13.
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Limited Territorial Restriction – Marketing Activities.
For twelve months following the Termination Date, Senior Officer shall not perform services of the type Senior Officer performed for the Company during the twenty-four -month period immediately preceding the end of Senior
Officer’s employment with the Company as part of the business of marketing Competing Products for sale in the Restricted Territory. This Paragraph shall not bar Senior Officer from performing clerical, menial or manual labor.
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14.
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Limited Territorial Restriction – Design, Development,
Production and Testing Activities. For twelve months following the Termination Date, Senior Officer shall not perform services of the type Senior Officer performed for the Company during the twenty-four -month
period immediately preceding the end of Senior Officer’s employment with the Company as part of the business of designing, testing, developing or producing Competing Products for sale in the Restricted Territory. This Paragraph
shall not bar Senior Officer from performing clerical, menial or manual labor.
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15.
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Non-solicitation of Employees.
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a. |
Non-solicitation of Company Management Employees. For twelve months
following the Termination Date, Senior Officer shall not, without the prior written consent of the Company, encourage, cause, or solicit, or assist others in encouraging, causing, or soliciting, a Management Employee to terminate such
Management Employee’s employment with the Company to provide Key Services in competition with the Company, unless such Management Employee has already ceased employment with the Company.
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b. |
Non-solicitation of Company Key Employees. For twelve months
following the Termination Date, Senior Officer shall not, without the prior written consent of the Company, encourage, cause, or solicit, or assist others in encouraging, causing, or soliciting, a Key Employee to terminate such Key
Employee’s employment with the Company to provide Key Services in competition with the Company, unless such Key Employee has already ceased employment with the Company.
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c. |
Non-solicitation of Company Supervised Employees. For twelve months
following the Termination Date, Senior Officer shall not, without the prior written consent of the Company, encourage, cause, or solicit, or assist others in encouraging, causing, or soliciting, a Supervised Employee to terminate such
Supervised Employee’s employment with the Company to provide Key Services in competition with the Company, unless such Supervised Employee has already ceased employment with the Company.
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d. |
Nothing in this agreement shall prohibit Senior Officer from providing letters of recommendation for or on behalf of any employee upon request.
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16.
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Remedies. In addition to other remedies
provided by law or equity, upon a breach by the Senior Officer of this Agreement, Senior Officer shall pay the Company’s reasonable attorney’s fees and costs arising out of such breach. The Parties agree that in the event of any
breach or threatened breach of this Agreement, the Company may obtain interim or other injunctive relief, in addition to any other remedies available, without the need to post a bond.
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17.
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Assignment. The Company’s rights under this
agreement will automatically be assigned to any parent, subsidiary or related entity of the Company if the Senior Officer commences employment with such parent, subsidiary or related entity of the Company. The Company may also
assign its rights under the Agreement to any successor entity or purchaser of related assets. In the event of assignment of this Agreement, the entity to which this Agreement is assigned shall be included in the definition of the
term “Company” as used in this Agreement. This Agreement and the respective rights, duties, and obligations of the Senior Officer hereunder may not be assigned or delegated by the Senior Officer.
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18.
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Coordination with Other Agreements. This
Agreement is in addition to any employment, non-competition, non-solicitation or confidentiality agreements previously entered into by Senior Officer in connection with Senior Officer’s employment with the Company, or any stock,
equity or other similar agreement with the Company. This Agreement may only be modified by a writing signed by the Parties.
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19.
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Waiver. The waiver by any Party of the breach
of any covenant or provision in this Agreement shall not operate or be construed as a waiver of any subsequent breach by any Party.
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20.
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Invalidity of any Provision. The provisions
of this Agreement are severable, it being the intention of the Parties that should any provision hereof be invalid or unenforceable, such invalidity or unenforceability of any provision shall not affect the remaining provisions
hereof, but the same shall remain in full force and effect to the fullest extent permitted by law as if such invalid or unenforceable provision were omitted. Whenever possible, each provision of this Agreement will be interpreted
in such manner as to be effective and valid under law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, Company and Senior Officer agree that such provision is to be reformed to
the extent necessary for the provision to be valid and enforceable to the fullest and broadest extent permitted by applicable law, without invalidating the remainder of this Agreement.
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21.
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Applicable Law and Venue. This Agreement
shall be governed by and construed in accordance with the internal laws of the state of Wisconsin. Any dispute between the Parties arising out of or related to this Agreement shall be heard only by the Circuit Court of
-----Waukesha County, Wisconsin, or by the United States District Court for the Eastern District of Wisconsin; and the Parties hereby consent to these courts as the exclusive venues for resolving any such disputes.
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22.
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Immunity from Liability for Confidential Disclosure of a
Trade Secret to the Government or in a Court Filing.
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(a) |
Immunity. An individual shall not be held criminally or
civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (i) is made (a) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney;
and (b) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
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(b) |
Use Of Trade Secret Information In Anti-Retaliation Lawsuit.
An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding,
if the individual (i) files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order.
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23.
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Interpretation and Construction. As used in
this Agreement, (a) the words “include,” “including” and variations thereof will not be deemed to be terms of limitation, (b) “or” is disjunctive but not necessarily exclusive, (c) paragraph headings are for convenience only and
will have no interpretive value and (d) “$” means U.S. Dollars or their equivalent in the local currency at the exchange rate in effect at the time the currency amount is to be determined under the terms of this Agreement.
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24.
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Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement.
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25.
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Definitions. When used in this Agreement the
following terms have the definition set forth below:
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(a) |
“Company” means Enerpac Tool Group Corp. and any parent,
subsidiary or affiliated entity of Enerpac Tool Group Corp.
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(b) |
“Competing Product” means any product or service which is
sold or provided in competition with a product or service that is, as of the Termination Date, either (a) sold or provided by the Company or (b) is in the process of development for sale by the Company within twelve months after the
end of Senior Officer’s employment with Company; provided, however, the term Competing Product is limited to products or services sold or provided in competition with products or services which:
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(c) |
“Confidential Information” means information (to the
extent it is not a Trade Secret), whether oral, written, recorded, magnetically or electronically or otherwise stored, and whether originated by the Senior Officer or otherwise coming into the possession or knowledge of the Senior
Officer, which is possessed by or developed for the Company and which relates to the Company’s existing or potential business, which information is not reasonably ascertainable by the Company’s competitors or by the general public
through lawful means, and which information the Company treats as confidential, including information regarding the Company’s business affairs, plans, strategies, products, designs, finances, computer programs, research, customers,
purchasing, marketing, and other information.
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(d) |
“Key Employee” means any person who at the Termination
Date is employed or engaged by Company, and with whom Senior Officer has had material business-related contact in the course of employment during the twelve months immediately preceding the Termination Date, and such person is in
possession of Confidential Information and/or Trade Secrets.
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(e) |
“Key Services” means services of the type performed by a
Key Employee, Management Employee, or Supervised Employee for the Company during the final twelve months preceding the Termination Date, but shall not include clerical, menial, or manual labor.
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(f) |
“Management Employee” means any person who at the
Termination Date is employed or engaged by Company, and with whom Senior Officer has had material business-related contact in the course of employment during the twelve months immediately preceding the Termination Date and such person
is a manager, officer, director, or executive of Company.
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(g) |
“Proprietary Creations” means inventions, discoveries,
designs, improvements, creations, and works conceived, authored, or developed by Senior Officer, either individually or with others, any time during Senior Officer’s employment with the Company that: (a) relate to the Company’s
current or contemplated business or activities; (b) relate to the Company’s actual or demonstrably anticipated research or development; (c) result from any work performed by Senior Officer for the Company; (d) involve the use of the
Company’s equipment, supplies, facilities, Confidential Information or Trade Secrets; (e) result from or are suggested by any work done by the Company or at the Company’s request, or any projects specifically assigned to Senior
Officer; or (f) result from Senior Officer’s access to any of the Company’s memoranda, notes, records, drawings, sketches, models, maps, customer lists, research results, data, formulae, specifications, inventions, processes,
equipment or other materials.
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(h) |
“Restricted Customer” means a customer of the Company to
which Senior Officer, or one or more individuals or Company business units supervised, managed, or directed by Senior Officer, sold or provided products or services on behalf of or as part of Senior Officer’s employment with the
Company during the twenty-four -month period immediately preceding the Termination Date.
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(i) |
“Restricted Territory” means states, provinces or
territories within the United States or other countries in which Senior Officer, or one or more other Company employees or Company business units managed or directed by Senior Officer, or receiving executive support from Senior
Officer:
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(j) |
“Strategic Customer” means a customer of Company that
purchased a product or service from the Company during the twelve-month period immediately preceding the last date of Senior Officer’s employment with the Company, but is limited to individuals and entities concerning which Senior
Officer learned, created or reviewed Confidential Information or Trade Secrets on behalf of the Company during the twenty-four -month period immediately preceding the Termination Date.
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(k) |
“Supervised Employee” means any person who at the
Termination Date is employed or engaged by Company, and with whom Senior Officer has had material business-related contact in the course of employment during the twelve months immediately preceding the Termination Date, and such
person was directly managed by or reported to Senior Officer during the last 12 months prior to the Termination Date.
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(l) |
“Termination Date” means the date of the Senior Officer’s
termination of employment with the Company, for any reason, without continuation of employment with any parent, subsidiary or related entity of the Company. Notwithstanding the foregoing, the Senior Officer’s termination of
employment with the Company shall not be a “Termination Date” for purposes of this agreement, if the Company has assigned this Agreement and the Senior Officer is employed after such assignment by the successor to this Agreement.
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(m) |
“Third Party Confidential Information” means information
received by the Company from others that Company has an obligation to treat as confidential.
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(n) |
“Trade Secret” means a Trade Secret as that term is
defined under applicable state or federal law.
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26.
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Reasonableness of Restrictions. SENIOR
OFFICER HAS READ THIS AGREEMENT AND AGREES THAT THE RESTRICTIONS ON SENIOR OFFICER’S ACTIVITIES OUTLINED IN THIS AGREEMENT ARE REASONABLE AND NECESSARY TO PROTECT COMPANY’S LEGITIMATE BUSINESS INTERESTS, THAT THE CONSIDERATION
PROVIDED BY COMPANY IS FAIR AND REASONABLE, AND FURTHER AGREES THAT GIVEN THE IMPORTANCE TO COMPANY OF ITS CONFIDENTIAL INFORMATION, TRADE SECRETS AND CUSTOMER RELATIONSHIPS, THE POST-EMPLOYMENT RESTRICTIONS ON SENIOR OFFICER’S
ACTIVITIES ARE LIKEWISE FAIR AND REASONABLE. SENIOR OFFICER AGREES THAT THE GEOGRAPHIC RESTRICTIONS ON SENIOR OFFICER’S POST-EMPLOYMENT ACTIVITY ARE REASONABLE. SENIOR OFFICER REPRESENTS AND WARRANTS THAT SENIOR OFFICER WILL BE
ABLE TO SECURE EMPLOYMENT IN SENIOR OFFICER’S FIELD OF EXPERIENCE WITHOUT VIOLATING ANY PROVISION OF THIS AGREEMENT.
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FOR ENERPAC TOOL GROUP CORP.:
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By:
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Date
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Name: Paul Sternlieb
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Title: President & Chief Executive Officer
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BY SENIOR OFFICER:
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Senior Officer Signature
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Date
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Name: Rick Dillon
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