KAMAN CORPORATION AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT
Exhibit 10.6
KAMAN
CORPORATION
AMENDED
AND RESTATED
THIS
AGREEMENT, is made effective as of January 1, 2007 (the
“Effective Date”), by and between Kaman Corporation, a Connecticut corporation
(the “Company”), and Xxxxxx X. Xxxxxxx (the “Executive”).
WHEREAS,
the Company and the Executive are parties to the Kaman Corporation Change in
Control Agreement dated as of September 21, 1999, as amended by an Addendum
to
Change in Control Agreement dated as of September 11, 2001, and a Second
Addendum to Change in Control Agreement dated as of November 11, 2003 (the
"Prior Agreement"); and
WHEREAS,
the Company and the Executive have agreed to replace and supersede the Prior
Agreement as set forth below.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the Company and the Executive hereby agree as follows:
1. Defined
Terms.
Definitions of capitalized terms used in this Agreement are provided in the
last
Section of this Agreement.
2. Term.
This
Agreement shall terminate on the fifth anniversary of the Effective Date. The
term of this Agreement shall be automatically extended thereafter for successive
one (1) year periods unless, at least ninety (90) days prior to the end of
the
fourth anniversary of the Effective Date or the then current succeeding one-year
extended term of this Agreement, the Company or Executive has notified the
other
that the term hereunder shall expire at the end of the then-current term.
Notwithstanding any such notice, the term of this Agreement shall not expire
before the second anniversary of a Change in Control that occurs within the
term
of this Agreement. The initial term of this Agreement, as it may be extended
under this Section 2, is herein referred to as the "Term."
3. Company’s
Covenants Summarized.
In
order to induce the Executive to remain in the employ of the Company and in
consideration of the Executive’s continued employment, the Company agrees, under
the conditions described herein, to pay the Executive the Severance Payments
and
the other payments and benefits described in this Agreement. Except as provided
in Sections 5.1 and 8.1 of this Agreement, no Severance Payments (as defined
in
Section 5) shall be payable under this Agreement unless there shall have been
a
termination of the Executive’s employment with the Company following a Change in
Control. This Agreement shall not be construed as creating an express or implied
contract of employment and, except as otherwise agreed in writing between the
Executive and the Company, the Executive shall not have any right to be retained
in the employ of the Company.
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4. Compensation
Other Than Severance Payments.
4.1
If
the
Executive’s employment shall be terminated for any reason following a Change in
Control, the Company shall pay the Executive’s full salary to the Executive
through the Date of Termination at the rate in effect immediately prior to
the
Date of Termination or, if Section 18(n)(II) is applicable as an event or
circumstance constituting Good Reason, the rate in effect immediately prior
to
such event or circumstance, together with all compensation and benefits payable
to the Executive through the Date of Termination under the terms of the
Company’s compensation and benefit plans, programs or arrangements as in effect
immediately prior to the Date of Termination (or, if more favorable to the
Executive, as in effect immediately prior to the first occurrence of an event
or
circumstance constituting Good Reason). In addition, if the Executive’s
employment is terminated for any reason following a Change in Control other
than
(a) by the Company for Cause and (b) by the Executive without Good Reason,
then
the Company shall pay a pro-rata portion of the Executive’s annual bonus for the
performance year in which such termination occurs to the Executive at the time
that annual bonuses are paid to other senior executives. This pro-rata bonus
shall be determined by multiplying the amount the Executive would have received
based upon actual financial performance through such termination, as reasonably
determined by the Company, by a fraction, the numerator of which is the number
of days during such performance year that the Executive is employed by the
Company and the denominator of which is 365.
4.2
If
the
Executive’s employment shall be terminated for any reason following a Change in
Control, the Company shall pay to the Executive the Executive’s normal
post-termination compensation and benefits as such payments become due. Such
post-termination compensation and benefits shall be determined under, and paid
in accordance with, the Company’s retirement, insurance and other compensation
or benefit plans, programs and arrangements as in effect immediately prior
to
the Date of Termination or, if more favorable to the Executive, as in effect
immediately prior to the occurrence of the first event or circumstance
constituting Good Reason.
5. Severance
Payments.
5.1
If
the
Executive’s employment is terminated during the twenty-four (24) month period
immediately following a Change in Control, other than (A) by the Company for
Cause, (B) by reason of death or Disability, or (C) by the Executive without
Good Reason, then the Company shall pay the Executive the amounts, and provide
the Executive the benefits described in this Section 5 (collectively, the
“Severance Payments”) in addition to any payments and benefits to which the
Executive is entitled under Section 4 of this Agreement. The Executive shall
also be entitled to Severance Payments under this Agreement if the Executive’s
employment is terminated without Cause by the Company or by the Executive for
Good Reason at any time beginning on the first day of the 90 day period
immediately prior to the execution of a definitive purchase and sale agreement
that results in such Change in Control and the closing of such Change in
Control.
(a) |
In
lieu of any further salary payments to the Executive for periods
subsequent to the Date of Termination and in lieu of any severance
benefit
payable to the Executive under the Executive’s Employment Agreement with
the Company or otherwise, the Company shall pay to the Executive
a lump
sum severance payment, in cash, equal to the sum of (i) two (2) times
the
Executive’s base salary as in effect immediately prior to the Date of
Termination or, if Section 18(n)(II) is applicable as an event or
circumstance constituting Good Reason, the rate in effect immediately
prior to such event or circumstance, and (ii) two (2) times the last
annual bonus paid or awarded (to the extent not yet paid) to the
Executive
in the previous three years (if any) immediately preceding the Date
of
Termination, pursuant to any annual bonus or incentive plan maintained
by
the Company.
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(b) |
For
the twenty-four (24) month period immediately following the Date
of
Termination, the Company shall arrange to provide the Executive and
his
dependents medical, dental, and accidental death and disability benefits
substantially similar to those provided to the Executive and his
dependents immediately prior to the Date of Termination or, if more
favorable to the Executive, those provided to the Executive and his
dependents immediately prior to the first occurrence of an event
or
circumstance constituting Good Reason, at no greater cost to the
Executive
than the cost to the Executive immediately prior to such date or
occurrence. Benefits otherwise receivable by the Executive pursuant
to
this Section 5.1(b) shall be reduced to the extent benefits of the
same
type are received by or made available by a subsequent employer to
the
Executive during the twenty-four (24) month period following the
Date of
Termination (and any such benefits received by or made available
to the
Executive shall be reported to the Company by the Executive); provided,
however, that the Company shall reimburse the Executive for the excess,
if
any, of the cost of such benefits to the Executive over such cost
immediately prior to the Date of Termination or, if more favorable
to the
Executive, the first occurrence of an event or circumstance constituting
Good Reason.
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(c) |
Notwithstanding
any provision to the contrary in any plan or agreement maintained
by or
through the Company pursuant to which the Executive has been granted
restricted stock, stock options, stock appreciation rights or long-term
performance awards, effective on the Date of Termination, (i) all
service
and performance based restrictions with respect to any restricted
stock
shall lapse, (ii) all stock appreciation rights and stock options
shall be
deemed fully vested and then canceled in exchange for a cash payment
equal
to the excess of the fair market value of the shares of Company stock
subject to the stock appreciation right or stock option on the date
of the
Change in Control, over the exercise price(s) of such stock appreciation
rights or stock options, and (iii) all long-term performance awards
shall
be deemed fully vested and fully earned and then shall be canceled
in
exchange for a cash payment equal to 100% of the target value of
each such
award.
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(d) |
In
addition to the retirement benefits to which the Executive is entitled
under any tax-qualified, supplemental or excess benefit pension plan
maintained by the Company and any other plan or agreement entered
into
between the Executive and the Company which is designed to provide
the
Executive supplemental retirement benefits (the “Pension Plans”) or any
successor plan thereto, effective upon the Date of Termination, the
Executive shall be credited with an
additional two years of “Credited Service” and “Continuous Service” (as
defined in the Kaman Corporation Amended and Restated Employees’ Pension
Plan) when calculating the Executive’s benefit under Kaman Corporation
Supplemental Employees Retirement Plan (“SERP”). For avoidance of doubt,
the Severance Payments payable under this Agreement shall be disregarded
when determining the Executive's Final Average Salary (as defined
under
the Kaman Corporation Amended and Restated Employees' Pension Plan)
for
purposes of calculating the benefits payable under the SERP or this
Section 5.1(d).
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(e) |
If
the Executive would have become entitled to benefits under the Company’s
post-retirement health care plans, as in effect immediately prior
to the
Date of Termination or, if more favorable to the Executive, as in
effect
immediately prior to the first occurrence of an event or circumstance
constituting Good Reason, had the Executive’s employment terminated at any
time during the period of twenty-four (24) months after the Date
of
Termination, the Company shall provide such post-retirement health
care
benefits to the Executive and the Executive’s dependents commencing on the
later of (i) the date on which such coverage would have first become
available and (ii) the date on which benefits described in Section
5.1 (b)
terminate.
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(f) |
The
Company (i) shall prepay all remaining premiums under any insurance
policy
maintained by the Company insuring the life of the Executive that
is in
effect and (ii) shall transfer to the Executive any and all rights
and
incidents of ownership in such arrangements at no cost to the
Executive.
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(g) |
The
Company shall provide the Executive with reimbursement for up to
Thirty
Thousand Dollars ($30,000) in the aggregate for outplacement services,
relocation costs, or both provided however that reimbursement shall
only
be provided until the earlier of the first anniversary of the Date
of
Termination or the Executive’s first day of employment with a new
employer.
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(h) |
The
Company shall provide the Executive with his Company automobile.
The book
value then attributed to it by the leasing company will be considered
“fringe benefit” income and that amount will be subject to tax during the
calendar year in which the Date of Termination occurs.
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5.2 Section
4999 Excise Tax.
(a) |
If
any
payments,
rights
or
benefits (whether
pursuant to the terms of this Agreement or
any other plan, arrangement or agreement of
Executive with
the Company
or
with any person
affiliated with the Company and
whether or not the Executive’s employment has then terminated (the
“Payments”)) received or to be received by Executive will be subject to
the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any
similar tax that may hereafter be imposed), then, except as set forth
in
Section 5.2(b) below,
the Company shall pay to Executive
an amount in addition to the Payments (the “Gross-Up Payment”) as
calculated below. The Gross-Up Payment shall be in an amount such
that,
after deduction of any Excise Tax on the Payments
and any federal, state and local income and employment tax and Excise
Tax
on the Gross-Up Payment, but before deduction for any federal, state
or
local income and employment tax on the Payments,
the net amount retained by the Executive
shall be equal to the Payments.
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(b) |
Notwithstanding
anything in this Agreement to the contrary, if the amount of Payments
that
will be subject
to
the Excise Tax does not exceed the amount of Payments that Executive
could
receive without having any Payments become subject to the Excise
Tax by at
least $100,000, then
Executive’s taxable cash-based benefits under this Agreement will first be
reduced in the order selected by Executive, and then, if necessary,
Executive’s equity-based compensation (based on the value of such
equity-based compensation as a “parachute payment” as defined in Treasury
Regulations promulgated under Section 280G of the Code and IRS revenue
rulings, revenue procedures and other official guidance) shall be
reduced
in the order selected by Executive, and then any other Payments shall
be
reduced as reasonably determined by the Company, to the extent necessary
to avoid imposition of the Excise Tax. If Executive does not select
the
amount to be reduced within the time prescribed by the Company, the
reductions specified herein shall be made by the Company in its sole
discretion from such compensation as it shall determine. Any amount
so
reduced shall be irrevocably forfeited and Executive shall have no
further
rights to receive it.
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(c) |
The
process for calculating the Excise Tax, determining the amount of
any
Gross-Up Payment and other procedures relating to this Section 5.2
are set
forth in Appendix A attached hereto. For purposes of making the
determinations and calculations required herein, the Consultant may
rely
on reasonable, good faith interpretations concerning the application
of
Section 280G and 4999 of the Code, provided that the Consultant shall
make
such determinations and calculations on the basis of “substantial
authority” (within
the meaning of Section 6662
of the Code) and shall provide opinions to that effect to both the
Company
and Executive.
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5.3 The
Company also shall reimburse the Executive for legal fees and expenses incurred
by the Executive in disputing in good faith any issue hereunder relating to
the
termination of the Executive’s employment or in seeking in good faith to obtain
or enforce any benefit or right provided by this Agreement. Such payments shall
be made within ten (10) business days after delivery of the Executive’s written
request for payment accompanied with such evidence of fees and expenses incurred
as the Company reasonably may require.
5.4 The
payments provided in subsections (a) and (c) of Section 5.1 shall be made on
the
last day of the Executive’s employment. The payments provided in Section 5.2 of
this Agreement, if any, as determined under Appendix A, shall be paid on the
Executive’s behalf to the applicable taxing authorities within five (5) days of
the receipt of the Consultant’s determination of the Gross-Up Payment. If
payments are not made in the time frame required by this subsection, interest
on
the unpaid amounts will accrue at 120% of the rate provided in Section
1274(b)(2)(B) of the Code until the date such payments are actually made. At
the
time that payments are made under this Agreement, the Company shall provide
the
Executive with a written statement setting forth the manner in which such
payments were calculated and the basis for such calculations including, without
limitation, any opinions or other advice the Company has received from the
Consultant or other advisors (and any such opinions or advice which are in
writing shall be attached to the statement).
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5.5 Coordination
with Employment Agreement.
Severance
Payments made under this Section 5 shall be in lieu of any severance benefit
payable to the Executive under the Executive’s Employment Agreement with the
Company or otherwise.
6. Termination
Procedures and Compensation During Dispute.
6.1 Notice
of Termination.
After a
Change in Control, any purported termination of the Executive’s employment
(other than by reason of death) shall be communicated by written Notice of
Termination from one party hereto to the other party hereto in accordance with
Section 9 of this Agreement. 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 the
Executive’s employment under the provision so indicated. Further, a Notice of
Termination for Cause is required to include a copy of a resolution duly adopted
by the affirmative vote of not less than three-quarters (3/4) of the entire
membership of the Board at a meeting of the Board which was called and held
for
the purpose of considering such termination (after reasonable notice to the
Executive and an opportunity for the Executive, together with the Executive’s
counsel, to be heard before the Board) finding that, in the good faith opinion
of the Board, the Executive was guilty of conduct set forth in clause (i) or
(ii) of the definition of Cause herein, and specifying the particulars thereof
in detail.
6.2 Date
of Termination.
“Date
of Termination,” with respect to any purported termination of the Executive’s
employment after a Change in Control, shall mean (i) if the Executive’s
employment is terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that the Executive shall not have returned to
the
full-time performance of the Executive’s duties during such thirty (30) day
period), and (ii) if the Executive’s employment is terminated for any other
reason, the date specified in the Notice of Termination (which, in the case
of a
termination by the Company, shall not be less than thirty (30) days (except
in
the case of a termination for Cause) and, in the case of a termination by the
Executive, shall not be less than fifteen (15) days nor more than sixty (60)
days, respectively, from the date such Notice of Termination is
given).
6.3 Dispute
Concerning Termination.
If
within fifteen (15) days after any Notice of Termination is given, or, if later,
prior to the Date of Termination (as determined without regard to this Section
6.3), the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Date of Termination shall
be extended until the date on which the dispute is finally resolved, either
by
mutual written agreement of the parties or by a final judgment, order or decree
of an arbitrator or a court of competent jurisdiction (which is not appealable
or with respect to which the time for appeal therefrom has expired and no appeal
has been perfected); provided, however, that the Date of Termination shall
be
extended by a notice of dispute given by the Executive only if such notice
is
given in good faith and the Executive pursues the resolution of such dispute
with reasonable diligence.
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6.4 Compensation
During Dispute.
If a
purported termination occurs following a Change in Control and the Date of
Termination is extended in accordance with Section 6.3 of this Agreement, the
Company shall continue to pay the Executive the full compensation in effect
when
the notice giving rise to the dispute was given (including, but not limited
to,
salary) and continue the Executive as a participant in all compensation, benefit
and insurance plans in which the Executive was participating when the notice
giving rise to the dispute was given, until the Date of Termination, as
determined in accordance with Section 6.3 of this Agreement. Amounts paid under
this Section 6.4 are in addition to all other amounts due under this Agreement
(other than those due under Section 4.1 of this Agreement) and shall not be
offset against or reduce any other amounts due under this Agreement.
Notwithstanding anything to the contrary in Section 6.3 and 6.4, if the Company,
after delivery of a Notice of Termination, promptly (and in any event within
30
days) determines that grounds existed prior to the delivery of the Notice of
Termination to terminate the Executive’s employment for Cause after complying
with the procedural requirements of this Agreement, the Company shall have
the
right to recover any payments that have been made to the Executive or on the
Executive’s behalf under this Agreement including but not limited to offset
against or reduction of any amounts due under this Agreement or
otherwise.
7. No
Mitigation.
The
Company agrees that under this Agreement, if the Executive’s employment with the
Company terminates, the Executive is not required to seek other employment
or to
attempt in any way to reduce any amounts payable to the Executive by the Company
pursuant to Section 5 of this Agreement or Section 6.4 of this Agreement.
Further, the amount of any payment or benefit provided for in this Agreement
(other than as specifically provided in Section 5.1(b) of this Agreement) shall
not be reduced by any compensation earned by the Executive as the result of
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company, or otherwise.
8. Successors;
Binding Agreement.
8.1 In
addition to any obligations imposed by law upon any successor to the Company,
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 expressly assume and agree to perform this
Agreement in accordance with its terms. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a breach
of
this Agreement and shall entitle the Executive to compensation from the Company
in the same amount and on the same terms as the Executive would be entitled
to
hereunder if the Executive were to terminate the Executive’s employment for Good
Reason after a Change in Control, except that, for purposes of implementing
the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination.
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8.2 This
Agreement shall inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive shall die while any amount
would still be payable to the Executive hereunder (other than amounts which,
by
their terms, terminate upon the death of the Executive) if the Executive had
continued to live, all such amounts, unless otherwise provided herein, shall
be
paid in accordance with the terms of this Agreement to the executors, personal
representatives or administrators of the Executive’s estate.
9. Notice.
For the
purpose of this Agreement, notices and all other communications provided for
in
this Agreement shall be in writing and shall be deemed to have been duly given
(a) on the date of delivery if delivered by hand, (b) on the date of
transmission, if delivered by confirmed facsimile, (c) on the first business
day
following the date of deposit if delivered by guaranteed overnight delivery
service, or (d) on the fourth business day following the date delivered or
mailed by United States registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If
to the
Executive: at the address (or to the facsimile number) shown on the records
of
the Company
If
to the
Company:
Kaman
Corporation
0000
Xxxx
Xxxxx Xxxxxx, X.X. Xxx 0
Xxxxxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxx, Esq.
Facsimile
No.: 000 000-0000
or
to
such other address as either party may have furnished to the other in writing
in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
10. Obligations
after the Date of Termination.
(a) |
Confidentiality.
The Executive agrees that the Executive shall not, directly or indirectly,
use, make available, sell, disclose or otherwise communicate to any
person, other than in the course of the Executive’s employment and for the
benefit of the Company, at any time following the Date of Termination,
any
nonpublic, proprietary or confidential information, knowledge or
data
relating to the Company, any of its subsidiaries, affiliated companies
or
businesses, which shall have been obtained by the Executive during
the
Executive’s employment by the Company. The foregoing shall not apply to
information that (i) was known to the public prior to its disclosure
to
the Executive; (ii) becomes known to the public subsequent to disclosure
to the Executive through no wrongful act of the Executive or any
representative of the Executive; or (iii) the Executive is required
to
disclose by applicable law, regulation or legal process (provided
that the
Executive provides the Company with prior notice of the contemplated
disclosure and reasonably cooperates with the Company at its expense
in
seeking a protective order or other appropriate protection of such
information). Notwithstanding clauses (i) and (ii) of the preceding
sentence, the Executive’s obligation to maintain such disclosed
information in confidence shall not terminate where only portions
of the
information are in the public
domain.
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(b) |
Non-Solicitation.
In the event that the Executive receives Severance Payments under
Section
5 of this Agreement, the Executive agrees that for the two (2) year
period
following the Date of Termination, the Executive will not, directly
or
indirectly, individually or on behalf of any other person, firm,
corporation or other entity, knowingly solicit, aid or induce any
managerial level employee of the Company or any of its subsidiaries
or
affiliates to leave such employment in order to accept employment
with or
render services to or with any other person, firm, corporation or
other
entity unaffiliated with the Company or knowingly take any action
to
materially assist or aid any other person, firm, corporation or other
entity in identifying or hiring any such employee (provided, that
the
foregoing shall not be violated by general advertising not targeted
at
Company employees nor by serving as a reference for an employee with
regard to an entity with which the Executive is not affiliated).For
the
avoidance of doubt, if a managerial level employee on his or her
own
initiative contacts the Executive for the primary purpose of securing
alternative employment, any action taken by the Executive thereafter
shall
not be deemed a breach of this Section
10(b).
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(c) |
Non-Competition.
The
Executive acknowledges that the Executive performs services of a
unique
nature for the Company that are irreplaceable, and that the Executive’s
performance of such services to a competing business will result
in
irreparable harm to the Company. Accordingly, in the event that the
Executive receives Severance Payments described in Section 5 of this
Agreement, the Executive agrees that for a period of two (2) years
following the Date of Termination, the Executive will not, directly
or
indirectly, become connected with, promote the interest of, or engage
in
any other business or activity competing with the business of the
Company
within the geographical area in which the business of the Company
is
conducted.
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(d) |
Non-Disparagement.
Each
of the Executive and the Company (for purposes hereof, “the Company” shall
mean only (i) the Company by press release or otherwise and (ii)
the
executive officers and directors thereof and not any other employees)
agrees not to make any public statements that disparage the other
party,
or in the case of the Company, its respective affiliates, officers,
directors, products or services. Notwithstanding the foregoing, statements
made in the course of sworn testimony in administrative, judicial
or
arbitral proceedings (including, without limitation, depositions
in
connection with such proceedings) or otherwise as required by law
shall
not be subject to this Section
10(d).
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(e) |
Return
of Company Property and Records.
The Executive agrees that upon termination of the Executive’s employment,
for any cause whatsoever, the Executive will surrender to the Company
in
good condition (reasonable wear and tear excepted) all property and
equipment belonging to the Company and all records kept by the Executive
containing the names, addresses or any other information with regard
to
customers or customer contacts of the Company, or concerning any
proprietary or confidential information of the Company or any operational,
financial or other documents given to the Executive during the Executive’s
employment with the Company.
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(f) |
Cooperation.
The Executive agrees that, following termination of the Executive’s
employment for any reason, the Executive shall upon reasonable advance
notice, and to the extent it does not interfere with previously scheduled
travel plans and does not unreasonably interfere with other business
activities or employment obligations, assist and cooperate with the
Company with regard to any matter or project in which the Executive
was
involved during the Executive’s employment, including any litigation. The
Company shall compensate the Executive for any lost wages (or, if
the
Executive is not then employed, provide reasonable compensation as
determined by the Compensation Committee) and expenses associated
with
such cooperation and assistance.
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(g) |
Assignment
of Inventions.
The Executive will promptly communicate and disclose in writing to
the
Company all inventions and developments including software, whether
patentable or not, as well as patents and patent applications (hereinafter
collectively called “Inventions”), made, conceived, developed, or
purchased by the Executive, or under which the Executive acquires
the
right to grant licenses or to become licensed, alone or jointly with
others, which have arisen or jointly with others, which have arisen
or
which arise out of the Executive’s employment with the Company, or relate
to any matters directly pertaining to the business of the Company
or any
of its subsidiaries. Included herein as if developed during the employment
period is any specialized equipment and software developed for use
in the
business of the Company. All of the Executive’s right, title and interest
in, to, and under all such Inventions, licenses, and right to grant
licenses shall be the sole property of the Company. As to all such
Inventions, the Executive will, upon request of the Company execute
all
documents which the Company deems necessary or proper to enable it
to
establish title to such Inventions or other rights, and to enable
it to
file and prosecute applications for letters patent of the United
States
and any foreign country; and do all things (including the giving
of
evidence in suits and other proceedings) which the Company deems
necessary
or proper to obtain, maintain, or assert patents for any and all
such
Inventions or to assert its rights in any Inventions not
patented.
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(h) |
Equitable
Relief and Other Remedies.
The parties acknowledge and agree that the other party’s remedies at law
for a breach or threatened breach of any of the provisions of this
Section
would be inadequate and, in recognition of this fact, the parties
agree
that, in the event of such a breach or threatened breach, in addition
to
any remedies at law, the other party, without posting any bond, shall
be
entitled to obtain equitable relief in the form of specific performance,
temporary restraining order, a temporary or permanent injunction
or any
other equitable remedy which may then be
available.
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(i) |
Reformation.
If it is determined by a court of competent jurisdiction in any state
that
any restriction in this Section 10 is excessive in duration or scope
or is
unreasonable or unenforceable under the laws of that state, it is
the
intention of the parties that such restriction may be modified or
amended
by the court to render it enforceable to the maximum extent permitted
by
the law of that state.
|
(j) |
Survival
of Provisions.
The obligations contained in this Section 10 shall survive the termination
or expiration of the Executive’s employment with the Company and shall be
fully enforceable thereafter.
|
11. Conditions.
Any
payments or benefits made or provided pursuant to this Agreement are subject
to
the Executive’s:
(a) |
compliance
with the provisions of Section 10
hereof;
|
(b) |
delivery
to the Company of an executed Agreement and General Release (the
“General
Release”), which shall be substantially in the form attached hereto as
Appendix B (with such changes therein or additions thereto as needed
under
then applicable law to give effect to its intent and purpose) within
21
days of presentation thereof by the Company to the Executive:
and
|
(c) |
delivery
to the Company of a resignation from all offices, directorships and
fiduciary positions with the Company, its affiliates and employee
benefit
plans.
|
12. Miscellaneous.
No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by the
Executive and the President of the Company or his designee. No waiver by either
party hereto at any time of any breach by the other party hereto of, or of
any
lack of compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of Connecticut without regard to its conflicts of law
principles. Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state or local law and any
additional withholding to which the Executive has agreed. The obligations of
the
Company and the Executive under this Agreement which by their nature may require
either partial or total performance after its expiration shall survive any
such
expiration.
13. Validity;
Counterparts.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect. This Agreement may be executed
in
several counterparts, each of which shall be deemed to be an original but all
of
which together will constitute one and the same instrument.
14. Prior
Agreements.
This
Agreement supersedes and replaces the Prior Agreement. This Agreement supersedes
any other agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof which have been made by either party.
By signing this Agreement, the Executive releases and discharges the Company
from any and all obligations and liabilities heretofore or now existing under
or
by virtue of the Prior Agreement.
11
15. Coordination
with Employment Agreement.
In the
event that the Executive receives compensation or benefits under the Executive’s
Employment Agreement and thereafter becomes entitled to similar compensation
or
benefits under this Agreement, the compensation and benefits paid or provided
under the Employment Agreement shall be an offset against the similar
compensation and benefits payable or to be provided under this
Agreement.
16. Settlement
of Disputes.
All
claims by the Executive for benefits under this Agreement shall be directed
to
and determined by the Board and shall be in writing. Any denial by the Board
of
a claim for benefits under this Agreement shall be delivered to the Executive
in
writing and shall set forth the specific reasons for the denial and the specific
provisions of this Agreement relied upon. The Board shall afford a reasonable
opportunity to the Executive for a review of the decision denying a claim and
shall further allow the Executive to appeal to the Board a decision of the
Board
within sixty (60) days after notification by the Board that the Executive’s
claim has been denied.
17. Arbitration.
Any
further dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in Hartford, Connecticut,
in accordance with the rules of the American Arbitration Association then in
effect; provided, however, that the evidentiary standards set forth in this
Agreement shall apply. Judgment may be entered on the arbitrator’s award in any
court having jurisdiction. Notwithstanding any provision of this Agreement
to
the contrary, the Executive shall be entitled to seek specific performance
of
the Executive’s right to be paid until the Date of Termination during the
pendency of any dispute or controversy arising under or in connection with
this
Agreement.
18. Definitions.
For
purposes of this Agreement, the following terms shall have the meanings
indicated below:
(a) |
“Affiliate”
shall have the meaning set forth in Rule 12b-2 promulgated under
Section
12 of the Exchange Act.
|
(b) |
“Beneficial
Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange
Act.
|
(c) |
“Board”
shall mean the Board of Directors of the
Company.
|
(d) |
“Cause”
for termination by the Company of the Executive’s employment shall mean
(i) the willful and continued failure by the Executive to substantially
perform the Executive’s duties with the Company (other than any such
failure resulting from the Executive’s incapacity due to physical or
mental illness or any such actual or anticipated failure after the
issuance of a Notice of Termination for Good Reason by the Executive
pursuant to Section 6.1 of this Agreement) after a written demand
for
substantial performance is delivered to the Executive by the Board,
which
demand specifically identifies the manner in which the Board believes
that
the Executive has not substantially performed the Executive’s duties, or
(ii) the willful engaging by the Executive in conduct which is
demonstrably and materially injurious to the Company or its subsidiaries,
monetarily or otherwise. For purposes of clauses (i) and (ii) of
this
definition, (x) no act, or failure to act, on the Executive’s part shall
be deemed “willful” unless done, or omitted to be done, by the Executive
not in good faith and without reasonable belief that the Executive’s act,
or failure to act, was in the best interest of the Company and (y)
in the
event of a dispute concerning the application of this provision,
no claim
by the Company that Cause exists shall be given effect unless the
Company
establishes to the Board by clear and convincing evidence that Cause
exists. Notwithstanding the foregoing, Cause shall not include any
act or
omission of which the Audit Committee of the Board (or the full Board)
has
had actual knowledge of all material facts related thereto for at
least 90
days without asserting that the act or omission constitutes
Cause.
|
12
(e) |
“Change
in Control” for purposes of this Agreement shall mean any of the following
events, provided that such an event is not also a Management
Buyout:
|
(I) |
any
Person is or becomes the Beneficial Owner directly or indirectly,
of
securities of the Company representing thirty-five (35%) or more
of the
combined voting power of the Company’s then outstanding
voting securities generally entitled to vote in the election of directors
of the Company;
provided, however, that no Change in Control will be deemed to have
occurred as a result of a change in ownership percentage resulting
solely
from an acquisition of securities by the Company or a transaction
described in clause (A) of paragraph (III)
below;
|
(II) |
during
any period of two consecutive years, individuals who, as of the beginning
of such period, constitute the Board (the “Incumbent Board”) cease to
constitute at least a majority of the Board; provided, that any person
becoming a director of the Company subsequent to the beginning of
such
period whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption
of office occurs as a result of either an actual or threatened election
contest, including but not limited to a consent solicitation, relating
to
the election of directors of the Company and whose appointment or
election
was not approved by at least a majority of the directors of the Company
in
office immediately before any such
contest;
|
(III) |
there
is consummated a Merger of the Company with any other business entity,
other than (A) a Merger which would result in the securities of the
Company generally entitled to vote in the election of directors of
the
Company outstanding immediately prior to such Merger continuing to
represent (either by remaining outstanding or by being converted
into such
securities of the surviving entity or any parent thereof), in combination
with the ownership of any trustee or other fiduciary holding such
securities under an employee benefit plan of the Company or any
Subsidiary, at least 50% of the combined voting power of the voting
securities of the Company or such surviving entity or any parent
thereof
outstanding immediately after such Merger, generally entitled to
vote in
the election of directors of the Company or such surviving entity
or any
parent thereof and, in the case of such surviving entity or any parent
thereof, of a class registered under Section 12 of the Exchange Act,
or
(B) a Merger effected to implement a recapitalization of the Company
(or
similar transaction) in which no Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Company representing
35% or more of the combined voting power of the Company’s then outstanding
voting securities generally entitled to vote in the election of directors
of the Company; or
|
13
(IV) |
the
stockholders of the Company approve a plan of complete liquidation
or
dissolution of the Company or there is consummated the sale or disposition
by the Company of all or substantially all of the Company’s assets, other
than a sale or disposition by the Company of all or substantially
all of
the Company’s assets to an entity where the outstanding securities
generally entitled to vote in the election of directors of the Company
immediately prior to the transaction continue to represent (either
by
remaining outstanding or by being converted into such securities
of the
surviving entity or any parent thereof) 50% or more of the combined
voting
power of the outstanding voting securities of such entity generally
entitled to vote in such entity’s election of directors immediately after
such sale and of a class registered under Section 12 of the Exchange
Act.
|
Within
five (5) days after a Change in Control has occurred, the Company shall deliver
to the Executive a written statement memorializing the date that the Change
in
Control occurred.
(f) |
“Code”
shall mean the Internal Revenue Code of 1986, as amended from time
to
time, and any successor Code, and related rules, regulations and
interpretations.
|
(g) |
“Company”
shall mean Kaman Corporation and, except in determining under Section
18(e) hereof whether or not any Change in Control of the Company
has
occurred, shall include any successor to its business and/or assets.
|
(h) |
“Consultant”
shall have the meaning set forth in Appendix A of this
Agreement.
|
(i) |
“Date
of Termination” shall have the meaning set forth in Section 6.2 of this
Agreement.
|
(j) |
“Disability”
shall be deemed the reason for the termination by the Company of
the
Executive’s employment, if, as a result of the Executive’s incapacity due
to physical or mental illness, the Executive shall have been absent
from
the full-time performance of the Executive’s duties with the Company for a
period of six (6) consecutive months, the Company shall have given
the
Executive a Notice of Termination for Disability, and, within thirty
(30)
days after such Notice of Termination is given, the Executive shall
not
have returned to the full-time performance of the Executive’s
duties.
|
(k) |
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended from time
to time.
|
14
(l) |
“Excise
Tax” shall mean any excise tax imposed under Section 4999 of the
Code.
|
(m) |
“Executive”
shall mean the individual named in the preamble to this
Agreement
|
(n) |
“Good
Reason” for termination by the Executive of the Executive’s
employment
shall mean the occurrence (without the Executive’s express written
consent) after any Change in Control (if more than one Change in
Control
has occurred, any reference to a Change in Control in this subsection
(n)
shall refer to the most recent Change in Control), of any one of
the
following acts by the Company, or failures by the Company to act,
unless,
in the case of any act or failure to act described in paragraph (I),
(V),
(VI), or (VII) below, such act or failure to act is corrected prior
to the
Date of Termination specified in the Notice of Termination given
in
respect thereof:
|
(I) |
the
assignment to the Executive of any duties inconsistent with the
Executive’s status as Executive Vice President and Chief Financial Officer
of the Company or a substantial diminution in the nature or status
of the
Executive’s responsibilities from those in effect immediately prior to the
Change in Control;
|
(II) |
a
reduction by the Company in the Executive’s annual Base Salary as in
effect on the date of this Agreement or as the same may be increased
from
time to time;
|
(III) |
the
relocation of the Executive’s principal place of employment to a location
more than 50 miles from the Executive’s principal place of employment
immediately prior to the Change in Control or the Company’s requiring the
Executive to be based anywhere other than such principal place of
employment (or permitted relocation thereof) except for required
travel on
the Company’s business to an extent substantially consistent with the
Executive’s business travel obligations immediately prior to the Change in
Control;
|
(IV) |
the
failure by the Company to pay to the Executive any portion of the
Executive’s current compensation, or to pay to the Executive any portion
of an installment of deferred compensation under any deferred compensation
program of the Company, within thirty (30) days of the date such
compensation is due;
|
15
(V) |
the
failure by the Company to continue in effect any compensation plan
in
which the Executive participates immediately prior to the Change
in
Control which is material to the Executive’s total compensation
(including, but not limited to, the Kaman Corporation Compensation
Administration Plan, Kaman Corporation Cash Bonus Plan, and Kaman
Corporation 2003 Stock Incentive Plan), unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has been
made with
respect to such plan, or the failure by the Company to continue the
Executive’s participation therein (or in such substitute or alternative
plan) on a basis not materially less favorable, both in terms of
the
amount or timing of payment of benefits provided and the level of
the
Executive’s participation relative to other participants, as existed
immediately prior to the Change in
Control;
|
(VI) |
the
failure by the Company to continue to provide the Executive with
benefits
substantially similar to those enjoyed by the Executive under any
of the
Company’s life insurance, health and accident, or disability plans in
which the Executive was participating immediately prior to the Change
in
Control, the taking of any other action by the Company which would
directly or indirectly materially reduce any of such benefits or
deprive
the Executive of any material fringe benefit enjoyed by the Executive
at
the time of the Change in Control, or the failure by the Company
to
provide the Executive with the number of paid vacation days to which
the
Executive is entitled on the basis of years of service with the Company
in
accordance with the Company’s normal vacation policy in effect at the time
of the Change in Control, provided, however, that this paragraph
shall not
be construed to require the Company to provide the Executive with
a
defined benefit pension plan if no such plan is provided to similarly
situated executive officers of the Company or its Affiliates;
or
|
(VII) |
any
purported termination of the Executive’s employment which is not effected
pursuant to a Notice of Termination satisfying the requirements of
Section
6.1 of this Agreement; for purposes of this Agreement, no such purported
termination shall be effective.
|
The
Executive’s right to terminate the Executive’s employment for Good Reason shall
not be affected by the Executive’s incapacity due to physical or mental illness.
The Executive’s continued employment shall not constitute consent to, or a
waiver of rights with respect to, any act or failure to act constituting Good
Reason hereunder.
Notwithstanding
anything to the contrary above, the Executive shall not have “Good Reason” to
terminate employment due solely to one or more of the following events: (1)
there is a diminution of the business of the Company or any of its subsidiaries,
including, without limitation, a sale or other transfer of property or other
assets of the Company or its subsidiaries, or a reduction in the Executive’s
business unit’s head count or budget, or (2) a suspension of the Executive’s
position, job functions, authorities, duties and responsibilities while on
paid
administrative leave due to a reasonable belief by the Board that the Executive
has engaged in conduct that would give adequate grounds to terminate the
Executive’s employment for Cause.
16
(o) |
“Gross-Up
Payment” shall have the meaning set forth in Section 5.2 of this
Agreement.
|
(p) |
“Management
Buyout” means any event or transaction which would otherwise constitute a
Change in Control (a “Transaction”) if, in connection with the
Transaction, the Executive, members of the Executive's immediate
family,
and/or the “Executive's Affiliates” (as defined below) participate,
directly or beneficially, as an equity investor in, or have the option
or
right to acquire, whether or not vested, equity interests of, the
acquiring entity or any of its Affiliates (the “Acquiror”) having a
percentage interest therein greater than 1%. For purposes of the
preceding
sentence, a party shall not be deemed to have participated as an
equity
investor in the Acquiror by virtue of (i) obtaining beneficial ownership
of any equity interest in the Acquiror as a result of the grant to
the
party of an incentive compensation award under one or more incentive
plans
of the Acquiror (including, but not limited to, the conversion in
connection with the Transaction of incentive compensation awards
of the
Company into incentive compensation awards of the Acquiror), on terms
and
conditions substantially equivalent to those applicable to other
employees
of the Company at a comparable level as such party immediately prior
to
the Transaction, after taking into account normal differences attributable
to job responsibilities, title and the like, or (ii) obtaining beneficial
ownership of any equity interest in the Acquiror on terms and conditions
substantially equivalent to those obtained in the Transaction by
all other
shareholders of the Company or (iii) the party’s interests in any
tax-qualified defined benefit or defined contribution pension or
retirement plan in which such party or any family member is a participant
or beneficiary. The “Executive’s Affiliates” at any time consist of any
entity in which the Executive and/or members of the Executive’s immediate
family then own, directly or beneficially, or have the option or
right to
acquire, whether or not vested, greater than 10% of such entity’s equity
interests, and all then current directors and executive officers
of the
Company who are members of any group, that also includes the Executive,
a
member of the Executive’s immediate family and/or any such entity, in
which the members have agreed to act together for the purpose of
participating in the Transaction. The Executive’s immediate family
consists of the Executive’s spouse, parents, children and
grandchildren.
|
(q) |
“Merger”
means a merger, share exchange, consolidation or similar business
combination under applicable law.
|
(r) |
“Notice
of Termination” shall have the meaning set forth in Section 6.1 of this
Agreement.
|
(s) |
“Payments”
shall have the meaning set forth in Section 5.1 of this
Agreement.
|
17
(t) |
“Person”
shall have the meaning given in Section 3(a)(9) of the Exchange Act,
as
modified and used in Sections 13(d) and 14(d) thereof, except that
such
term shall not include (i) the Company or any of its direct or indirect
Subsidiaries, (ii) a trustee or other fiduciary holding securities
under
an employee benefit plan of the Company, (iii) an underwriter temporarily
holding securities pursuant to an offering of such securities, or
(iv) a
corporation owned, directly or indirectly, by the stockholders of
the
Company in substantially the same proportions and with substantially
the
same voting rights as their ownership and voting rights with respect
to
the Company.
|
(u) |
“Subsidiary”
shall mean any corporation within the meaning of Section 424(f) of
the
Code.
|
(v) |
“Term”
shall mean the period of time described in Section 2 of this
Agreement.
|
19. Payment
of Compensation.
The
parties shall revisit this Agreement when the IRS issues final regulations
under
Section 409A of the Code for the sole purpose of determining whether any
amendments are required in order to comply with such regulations. The parties
shall promptly agree in good faith on appropriate provisions to avoid any
material risk of noncompliance without materially changing the economic value
(to the Executive) or the cost (to the Company) of this Agreement including,
if
necessary, the deferral of any amount payable hereunder upon separation from
service to the first date such amount may be paid without incurring tax under
Section 409A of the Code, in which case such payment shall bear interest at
the
applicable federal rate under Section 1274 of the Code. Notwithstanding the
foregoing, the Company shall in no event be obligated to indemnify the Executive
for any taxes or interest that may be assessed by the IRS pursuant to Section
409A of the Code.
18
IN
WITNESS WHEREOF, the parties have executed this agreement.
|
Kaman
Corporation
|
|||
/s/ Xxxx X. Xxxx | 2/20/07 | |||
By:
|
Xxxx
X. Xxxx
|
Date
|
||
Its:
|
President
And Chief Executive Officer
|
|||
EXECUTIVE
|
||||
|
/s/
Xxxxxx X. Xxxxxxx
|
February
20, 2007
|
||
Xxxxxx
X. Xxxxxxx
|
Date | |||
19
TAX
GROSS-UP PAYMENT RULES AND PROCEDURES
1. Subject
to Paragraph 3 below, all determinations required to be made under Section
5.2
of this Agreement, including whether a Gross-Up Payment is required and the
amount of such Gross-Up Payment, shall be made by an accounting firm (the
“Consultant”) selected in accordance with Paragraph 2 below. The Consultant
shall provide detailed supporting calculations both to the Company and Executive
within 15 business days of the event that results in the potential for an excise
tax liability for the Executive, which could include but is not limited to
a
Change in Control and the subsequent vesting of any cash payments or awards,
or
the Executive’s termination of employment, or such earlier time as is required
by the Company. The initial Gross-Up Payment, if any, as determined pursuant
to
this Paragraph 1, shall be paid on the Executive’s behalf to the applicable
taxing authorities within five (5) days of the receipt of the Consultant’s
determination. If the Consultant determines that the Executive is not subject
to
Excise Tax, it shall furnish the Executive with a written report indicating
that
he has substantial authority not to report any Excise Tax on his federal income
tax return. Any determination by the Consultant shall be binding upon the
Company and Executive. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Consultant hereunder, it is possible that Gross-Up Payments which will not
have
been made by the Company should have been made (“Underpayment”), consistent with
the calculations required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Paragraph 3 below and Executive thereafter
is
required to make a payment or additional payment of any Excise Tax, the
Consultant shall determine the amount of the Underpayment that has occurred
and
any such Underpayment, increased by all applicable interest and penalties
associated with the Underpayment, shall be promptly paid by the Company to
or
for the benefit of Executive. For purposes of determining the amount of the
Gross-Up Payment, Executive shall be deemed to pay federal income tax at the
highest marginal rate of federal income taxation in the calendar year in which
the Gross-Up Payment is to be made and state and local income taxes on earned
income at the highest marginal rate of taxation in the state and locality of
Executive’s residence on the Date of Termination, (or the date of the Change in
Control if the Executive is subject to Excise Tax prior to the issuance of
a
Notice of Termination) net of the maximum reduction in federal income taxes
which could be obtained from deduction of such state and local
taxes.
2. The
Consultant shall be a nationally recognized public accounting firm, benefits
consultant or law firm proposed by the Company and agreed upon by the Executive.
If Executive and the Company cannot agree on the firm to serve as the Consultant
within ten (10) days after the date on which the Company proposed to Executive
an entity to serve as the Consultant, then Executive and the Company shall
each
select one and those two firms shall jointly select the entity to serve as
the
Consultant within ten (10) days after being requested by the Company and
Executive to make such selection. The Company shall pay the Consultant’s
fee.
20
3. Executive
shall notify the Company in writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by the Company of the Gross-Up
Payment. Such notification shall be given as soon as practicable, but no later
than fifteen (15) business days after Executive knows of such claim and
Executive shall apprise the Company of the nature of such claim and the date
on
which such claim is requested to be paid. Executive shall not pay such claim
prior to the expiration of the period ending on the date that any payment of
taxes with respect to such claim is due or the thirty day period following
the
date on which Executive gives such notice to the Company, whichever period
is
shorter. If the Company notifies Executive in writing prior to the expiration
of
such period that it desires to contest such claim, Executive shall (i) give
the
Company any information reasonably requested by the Company relating to such
claim, (ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim
by
an attorney reasonably selected by the Company, (iii) cooperate with the Company
in good faith in order effectively to contest such claim, and (iv) permit the
Company to participate in any proceedings relating to such claim; provided,
however, that the Company shall bear and pay directly all costs and expenses
(including attorneys fees and any additional interest and penalties) incurred
in
connection with such contest and shall indemnify and hold Executive harmless,
on
an after-tax basis, for any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of such representation
and
payment of costs and expenses. Without limitation of the foregoing provisions
of
this Paragraph 3, the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect to such claim and may, at its sole option, either direct
Executive to pay the tax claimed and xxx for a refund or contest the claim
in
any permissible manner, and Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs Executive to pay
such
claim and xxx for a refund, the Company shall advance the amount of such payment
to Executive, on an interest-free basis and shall indemnify and hold Executive
harmless, on an after-tax basis, from any Excise Tax and income tax, including
interest or penalties with respect thereto, imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and further
provided that any extension of the statute of limitations relating to payment
of
taxes for the taxable year of Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company’s control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other
authority.
4. If,
after
the receipt by Executive of an amount advanced by the Company pursuant to
Paragraph 3 above, Executive becomes entitled to receive any refund with respect
to such claim, Executive shall (subject to the Company’s complying with the
requirements of Paragraph 3), promptly pay to the Company the amount of such
refund (together with any interest paid or credited thereon after taxes
applicable thereto).
00
XXXXXXXX
X
FORM
OF RELEASE
AGREEMENT
AND GENERAL RELEASE
Kaman
Corporation, its affiliates, subsidiaries, divisions, successors and assigns
in
such capacity, and the current, future and former employees, officers,
directors, trustees and agents thereof (collectively referred to throughout
this
Agreement as “Employer”), and Xxxxxx X. Xxxxxxx (“Executive”), the Executive’s
heirs, executors, administrators, successors and assigns (collectively referred
to throughout this Agreement as “Employee”) agree:
1. Last
Day
of Employment. Executive’s last day of employment with Employer is
______________. In addition, effective as of DATE, Executive resigns from the
Executive’s positions as Executive Vice President and Chief Financial Officer of
Employer and will not be eligible for any benefits or compensation after
________, including payments under the Executive’s Employment Agreement, other
than as specifically provided under the Change in Control Agreement between
Employer and Executive effective as of January 1, 2007 (the “Change in Control
Agreement”).
Executive further acknowledges and agrees that, after DATE, the Executive will
not represent the Executive as being a director, employee, officer, trustee,
agent or representative of Employer for any purpose. In addition, effective
as
of DATE, Executive resigns from all offices, directorships, trusteeships,
committee memberships and fiduciary capacities held with, or on behalf of,
Employer or any benefit plans of Employer. These resignations will become
irrevocable as set forth in Section 3 below.
2. Consideration.
The parties acknowledge that this Agreement and General Release is being
executed in accordance with Section 11 of the Change in Control
Agreement.
3. Revocation.
Executive may revoke this Agreement and General Release for a period of seven
(7) calendar days following the day Executive executes this Agreement and
General Release. Any revocation within this period must be submitted, in
writing, to Employer and state, “I hereby revoke my acceptance of our Agreement
and General Release.” The revocation must be personally delivered to Employer’s
_______________Chief Legal Officer, or his/her designee, or mailed to Kaman
Corporation, 0000 Xxxx Xxxxx Xxxxxx, X.X. Xxx 0, Xxxxxxxxxx, XX 00000, Attention
Xxxxxxx Xxxxx, and postmarked within seven (7) calendar days of execution of
this Agreement and General Release. This Agreement and General Release shall
not
become effective or enforceable until the revocation period has expired. If
the
last day of the revocation period is a Saturday, Sunday, or legal holiday in
Hartford, Connecticut, then the revocation period shall not expire until the
next following day which is not a Saturday, Sunday, or legal
holiday.
4. General
Release of Claim. Subject to the full satisfaction by the Employer of its
obligations under the Change in Control Agreement, Employee knowingly and
voluntarily releases and forever discharges Employer from any and all claims,
causes of action, demands, fees and liabilities of any kind whatsoever, whether
known and unknown, against Employer, Employee has, has ever had or may have
as
of the date of execution of this Agreement and General Release, including,
but
not limited to, any alleged violation of:
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- Title
VII
of the Civil Rights Act of 1964, as amended;
- The
Civil
Rights Act of 1991;
- Sections
1981 through 1988 of Title 42 of the United States Code, as
amended;
- The
Employee Retirement Income Security Act of 1974, as amended;
- The
Immigration Reform and Control Act, as amended;
- The
Americans with Disabilities Act of 1990, as amended;
- The
Age
Discrimination in Employment Act of 1967, as amended;
- The
Older
Workers Benefit Protection Act of 1990;
- The
Worker Adjustment and Retraining Notification Act, as amended;
- The
Occupational Safety and Health Act, as amended;
- The
Family and Medical Leave Act of 1993;
-
Any
wage
payment and collection, equal pay and other similar laws, acts and statutes
of
the State of Connecticut;
-
Any
other
federal, state or local civil or human rights law or any other local, state
or
federal law, regulation or ordinance;
-
Any
public policy, contract, tort, or common law; or
-
Any
allegation for costs, fees, or other expenses including attorneys fees
incurred
in these matters.
Notwithstanding
anything herein to the contrary, the sole matters to which the Agreement and
General Release do not apply are: (i) Employee’s express rights under any
pension (including but not limited to any rights under the Kaman Corporation
Supplemental Retirement Plan) or claims for accrued vested benefits under any
other employee benefit plan, policy or arrangement maintained by Employer or
under COBRA; (ii) Employee’s rights under the provisions of the Change in
Control Agreement which are intended to survive termination of employment;
or
(iii) Employee’s rights as a stockholder.
5. No
Claims
Permitted. Employee waives Executive’s right to file any charge or complaint
against Employer arising out of Executive’s employment with or separation from
Employer before any federal, state or local court or any state or local
administrative agency, except where such waivers are prohibited by
law.
6. Affirmations.
Employee affirms Executive has not filed, has not caused to be filed, and is
not
presently a party to, any claim, complaint, or action against Employer in any
forum. Employee further affirms that the Executive has been paid and/or has
received all compensation, wages, bonuses, commissions, and/or benefits to
which
Executive may be entitled and no other compensation, wages, bonuses, commissions
and/or benefits are due to Executive, except as provided under the Change in
Control Agreement. Employee also affirms Executive has no known workplace
injuries.
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7. Cooperation;
Return of Property. In accordance with Section 10(f) of the Change in Control
Agreement Employee agrees to reasonably cooperate with Employer and its counsel
in connection with any investigation, administrative proceeding or litigation
relating to any matter that occurred during Executive’s employment in which
Executive was involved or of which Executive has knowledge and Employer will
reimburse the Employee for any reasonable out-of-pocket travel, delivery or
similar expenses incurred and lost wages (or will provide reasonable
compensation if Executive is not then employed) in providing such service to
Employer. The Employee represents the Executive has complied with Section 10(e)
of the Change in Control Agreement regarding the return of Employer property
and
records.
8. Governing
Law and Interpretation. This Agreement and General Release shall be governed
and
conformed in accordance with the laws of the State of Connecticut without regard
to its conflict of laws provisions. In the event Employee or Employer breaches
any provision of this Agreement and General Release, Employee and Employer
affirm either may institute an action to specifically enforce any term or terms
of this Agreement and General Release. Should any provision of this Agreement
and General Release be declared illegal or unenforceable by any court of
competent jurisdiction and should the provision be incapable of being modified
to be enforceable, such provision shall immediately become null and void,
leaving the remainder of this Agreement and General Release in full force and
effect. Nothing herein, however, shall operate to void or nullify any general
release language contained in the Agreement and General Release.
9. No
Admission of Wrongdoing. Employee agrees neither this Agreement and General
Release nor the furnishing of the consideration for this Release shall be deemed
or construed at any time for any purpose as an admission by Employer of any
liability or unlawful conduct of any kind.
10. Amendment.
This Agreement and General Release may not be modified, altered or changed
except upon express written consent of both parties wherein specific reference
is made to this Agreement and General Release.
11. Entire
Agreement. This Agreement and General Release sets forth the entire agreement
between the parties hereto and fully supersedes any prior agreements or
understandings between the parties; provided, however, that notwithstanding
anything in this Agreement and General Release, the provisions in the Change
in
Control Agreement which are intended to survive termination of the Change in
Control Agreement, including but not limited to those contained in Section
10
thereof, shall survive and continue in full force and effect. Employee
acknowledges Executive has not relied on any representations, promises, or
agreements of any kind made to Executive in connection with Executive’s decision
to accept this Agreement and General Release.
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EMPLOYEE
HAS BEEN ADVISED THAT EXECUTIVE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS TO
REVIEW THIS AGREEMENT AND GENERAL RELEASE AND HAS BEEN ADVISED IN WRITING TO
CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT AND GENERAL
RELEASE.
EMPLOYEE
AGREES ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT AND
GENERAL RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE
(21) CALENDAR DAY CONSIDERATION PERIOD.
HAVING
ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO FULFILL THE PROMISES
SET FORTH HEREIN, AND TO RECEIVE THE SUMS AND BENEFITS SET FORTH IN THE CHANGE
IN CONTROL AGREEMENT, EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE
CONSIDERATION, ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE INTENDING TO
WAIVE, SETTLE AND RELEASE ALL CLAIMS EXECUTIVE HAS OR MIGHT HAVE AGAINST
EMPLOYER.
IN
WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed this
Agreement and General Release as of the date set forth below:
|
|
KAMAN
CORPORATION
|
By:
|
||
Name:
|
[NAME]
|
|
Title:
|
||
Date:
|
||
Xxxxxx
X. Xxxxxxx
|
||
Date:
|
||
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