FOR
THE BENEFIT OF EMPLOYEE, ALL OR ANY PORTION OF ANY GROSS-UP PAYMENT, AND
EMPLOYEE HEREBY CONSENTS TO SUCH WITHHOLDING.
F.
FOR PURPOSES OF THIS SECTION 25 OF
THIS AGREEMENT, "EXCISE TAX" SHALL MEAN THE EXCISE TAX IMPOSED BY SECTION 4999
OF THE CODE, TOGETHER WITH INTEREST OR PENALTIES IMPOSED WITH RESPECT TO SUCH
EXCISE TAX;
"AUDITOR" SHALL MEAN THE ACCOUNTING FIRM WHICH WAS, IMMEDIATELY
PRIOR TO THE CHANGE OF CONTROL, THE COMPANY'S INDEPENDENT AUDITOR; AND "PAYMENT"
SHALL MEAN ANY PAYMENT OR DISTRIBUTION IN THE NATURE OF COMPENSATION (WITHIN THE
MEANING OF SECTION 280G(B)(2) OF THE CODE) TO OR FOR THE BENEFIT OF EMPLOYEE,
WHETHER PAID OR PAYABLE PURSUANT TO THIS AGREEMENT OR OTHERWISE.
26.
AGREEMENT VOLUNTARY:
EMPLOYEE AND S&S EACH
ACKNOWLEDGE AND AGREE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND
UNDERSTAND THAT, EXCEPT AS EXPRESSLY RESERVED HEREIN, IT IS A RELEASE OF ALL
CLAIMS, KNOWN AND UNKNOWN, PAST OR PRESENT, INCLUDING ALL CLAIMS UNDER THE ADEA.
THE PARTIES FURTHER AGREE THAT THEY HAVE ENTERED INTO THIS AGREEMENT FOR THE
ABOVE STATED CONSIDERATION. THE PARTIES EACH WARRANT TO THE OTHER THAT THEY ARE
FULLY COMPETENT AND AUTHORIZED TO EXECUTE THIS AGREEMENT, WHICH THEY UNDERSTAND
TO BE CONTRACTUAL. THEY FURTHER EACH ACKNOWLEDGE THAT THEY EXECUTE THIS
AGREEMENT OF THEIR OWN FREE WILL, AFTER HAVING A REASONABLE PERIOD OF TIME TO
REVIEW, STUDY, AND DELIBERATE REGARDING ITS MEANING AND
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effect, and after being advised to consult an attorney, and without reliance on
any representation of any kind or character not expressly set forth herein.
Finally, they execute this Agreement fully knowing its effect and voluntarily
for the consideration stated above.
27.
NOTICES:
ANY NOTICES REQUIRED OR PERMITTED TO
BE GIVEN UNDER THIS AGREEMENT SHALL BE PROPERLY MADE IF DELIVERED IN THE CASE OF
S&S TO:
Stewart & Stevenson Services, Inc.
P.O. Box 1637
Houston, Texas 77251
Attention:
Stephen A. Hines
Vice President of Human Resources
and in the case of Employee to:
John B. Simmons; at the last address on the books and records of the Company.
28.
ENTIRE AGREEMENT. THIS AGREEMENT SETS FORTH
THE ENTIRE AGREEMENT OF THE PARTIES HERETO IN RESPECT OF THE SUBJECT MATTER
CONTAINED HEREIN AND SUPERSEDES ALL PRIOR AGREEMENTS, PROMISES, COVENANTS,
ARRANGEMENTS, COMMUNICATIONS, REPRESENTATIONS OR WARRANTIES, WHETHER ORAL OR
WRITTEN, BY ANY OFFICER, EMPLOYEE OR REPRESENTATIVE OF ANY PARTY HERETO,
INCLUDING BUT NOT LIMITED TO THE SEVERANCE AGREEMENT DATED JULY 19, 2004 BETWEEN
EMPLOYEE AND THE COMPANY.
29.
BINDING EFFECT. THIS AGREEMENT SHALL BE
BINDING UPON, AND INURE TO THE BENEFIT OF, ANY SUCCESSOR OF THE COMPANY.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument, in Houston, Harris
County, Texas as of the last date entered below.
/s/ John B. Simmons
1/20/06
John B. Simmons
Date
STEWART & STEVENSON SERVICES, INC.
By:
/s/ Carl B. King
1/25/06
Carl B. King
Date
Senior Vice President
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