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EXHIBIT 10.15A
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, is entered into as of the 21st day of December,
2000 by and between Textron Inc. (the "Company"), a Delaware corporation having
its principal office at 00 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000
and Xxxxxxxx X. Xxxxxx residing at 000 Xxxx Xxxxxxxx Xxxx, Xxxx Xxxxxx,
Xxxxxxxx, 00000 (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive and the Executive is
willing to be employed by the Company; and
WHEREAS, the Company and the Executive desire to set forth the terms and
conditions of such employment.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this Agreement, and of
other good and valuable consideration, the adequacy and receipt of which is
acknowledged, the parties hereto agree as follows:
1. TERM OF EMPLOYMENT
The Company hereby agrees to employ the Executive and the Executive hereby
accepts employment, in accordance with the terms and conditions set forth
herein, for a term (the "Employment Term") commencing on the date hereof (the
"Effective Date") and terminating, unless otherwise terminated earlier in
accordance with Section 5 hereof, on the third anniversary of the Effective Date
(the "Original Employment Term"), provided that the Employment Term shall be
automatically extended, subject to earlier termination as provided in Section 5
hereof, for successive additional one (1) year periods (the "Additional Terms"),
unless, at least ninety (90) days prior to the end of the Original Employment
Term or the then Additional Term, the Company or the Executive has notified the
other in writing that the Employment Term shall terminate at the end of the then
current term.
2. POSITION AND RESPONSIBILITIES
During the Employment Term, the Executive shall serve as the Executive Vice
President and Chief Financial Officer of the Company or in such higher capacity
as agreed by the Company and the Executive, and shall be a member of the
Management Committee and the Executive Leadership Team or any successor body
thereto ("ELT"). The Executive shall report exclusively to the Chief Executive
Officer and the Board of Directors of the Company (the "Board"). The Executive
shall, to the extent appointed or elected, serve on the Board as a director and
as a member of any committee of the Board, in each case, without additional
compensation. The Executive shall, to the extent appointed or elected, serve as
a director or as a member of any committee of the board (or the equivalent
bodies in a non-corporate subsidiary or affiliate) of any of the Company's
subsidiaries or affiliates and as an officer or employee (in a
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capacity commensurate with his position with the Company) of any such
subsidiaries or affiliates, in all cases, without additional compensation or
benefits, and any compensation paid to the Executive, or benefits provided to
the Executive, in such capacities shall be a credit with regard to the amounts
due hereunder from the Company. The Executive shall have duties, authorities and
responsibilities generally commensurate with the duties, authorities and
responsibilities of persons in similar capacities in similarly sized companies,
subject to the By-laws and organizational structure of the Company. The
Executive shall devote substantially all of his business time, attention and
energies to the performance of his duties hereunder, provided the foregoing will
not prevent the Executive from participating in charitable, community or
industry affairs, from managing his and his family's personal passive
investments, and (with the consent of the Chief Executive Officer or the
Organization and Compensation Committee (or its successor) of the Board (the
"O&C Committee"), which consent will not be unreasonably withheld, conditioned
or delayed) serving on the board of directors of other companies, provided that
these activities do not materially interfere with the performance of his duties
hereunder or create a potential business conflict or the appearance thereof.
The Executive may retain any compensation or benefits received as a
result of consented to service as a director of entities not related to the
Company.
The Executive may perform his duties hereunder, when practical, at his
office in Illinois or at such other location where Executive may reside in the
future, provided the performance of his duties at a location other than the
Company's headquarters does not materially interfere with Executive's
performance of duties hereunder, as determined in good faith by the Chief
Executive Officer.
3. COMPENSATION AND BENEFITS
During the Employment Term, the Company shall pay and provide the Executive
the following:
3.1 BASE SALARY. The Company shall pay the Executive an initial base salary
(the "Base Salary") at a rate of $550,000. Base Salary shall be paid to the
Executive in accordance with the Company's normal payroll practices for
executives. Base Salary shall be reviewed at least annually by the O&C Committee
(or as otherwise designated by the Board) to ascertain whether, in the judgment
of the reviewing committee, such Base Salary should be increased. If so
increased, Base Salary shall not be thereafter decreased and shall thereafter,
as increased, be the Base Salary hereunder.
3.2 ANNUAL BONUS. The Company shall provide the Executive with the
opportunity to earn an annual cash bonus under the Company's current annual
incentive compensation plan for executives or a replacement plan therefor at a
level commensurate with his position, provided, however, that the minimum annual
target award payable upon the achievement of reasonably attainable objective
performance goals shall be at least sixty percent (60%) of Base Salary, with a
maximum payment of two hundred percent (200%) of Executive's target. Executive
shall receive a guaranteed minimum 2001 annual bonus of $330,000, payable in
2002 in accordance with the provisions of the Company's annual incentive
compensation plan. For (a) 2001 and (b) each year thereafter, if members of the
Management Committee are eligible therefor, the Executive will have the
opportunity to earn an additional cash bonus under the
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Textron Quality Management ("TQM") bonus program of up to fifty percent (50%) of
his annual target incentive.
3.3 HIRING BONUS. The Company shall pay the Executive a hiring bonus of
$100,000 within five (5) days after the Effective Date.
3.4 LONG-TERM INCENTIVES. The Company shall provide the Executive the
opportunity to earn long-term incentive awards under the current equity and cash
based plans and programs or replacements therefore including the following
awards:
(a) OPTIONS. On the Effective Date the Company shall grant the Executive
stock options under the Textron Long-Term Incentive Plan (the
"Long-Term Incentive Plan") to purchase seventy thousand (70,000)
shares of the Company's common stock at an exercise price equal to
fair market value at the time of grant (the "Stock Options"). Fifty
percent (50%) of the Stock Options shall vest on the one year
anniversary of the Effective Date and the remainder shall vest on the
second anniversary of the Effective Date, provided in each case the
Executive is then employed by the Company. The Stock Options shall
terminate on the tenth anniversary of the date of grant. The Stock
Options will be granted pursuant to Non-Qualified Stock Option Award
Agreements or Incentive Stock Option Award Agreements, as applicable
and in each case shall be in all respects subject to the provisions of
such agreements and the Company's Long-Term Incentive Plan except as
otherwise expressly provided for herein.
(b) PERFORMANCE SHARE UNITS. The Company shall grant the Executive
performance share units ("PSUs") under the Company's Long-Term
Incentive Plan as follows: six thousand (6,000) PSUs for a one (1)
year award period ending December, 2001; seven thousand (7,000) PSUs
for a two (2) year award period ending December, 2002; and fifteen
thousand (15,000) PSUs for a three (3) year award period ending
December, 2003. Commencing with award periods ending in 2002,
Executive shall also have the opportunity to earn up to an additional
one hundred percent (100%) of the value of the PSUs upon achieving
outstanding performance under a special long-term incentive program
(the "Special PSU Program").
(c) RESTRICTED STOCK. On the Effective Date the Company shall grant the
Executive one hundred thousand (100,000) shares of the Company's
common stock (which shall be dividend bearing), subject to the
following vesting schedule: twenty thousand (20,000) shares shall vest
annually commencing January 1, 2002 and each anniversary thereafter
provided Executive is then employed by the Company (the "Restricted
Stock").
3.5 EMPLOYEE BENEFITS. (a) The Executive shall, to the extent eligible, be
entitled to participate at a level commensurate with his position in all
employee benefit welfare and retirement plans and programs, as well as equity
plans, generally provided by the Company to its senior executives in accordance
with the terms thereof as in effect from time to time. Such plans and programs
currently include the Key Executive Benefits Program (including the Deferred
Income Plan, the Supplemental Benefits Plan (the "SBP"), the Survivor Benefit
Plan, an
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executive automobile, club membership and financial planning and tax
preparation), the Company's savings and pension plan and medical and life
insurance.
(b) The Executive shall also participate in the Supplemental Retirement
Plan for Textron, Inc. Key Executives (the "SERP"). Under the SERP as currently
in effect, the Executive shall be entitled to receive a single life annuity upon
his retirement from the Company at or after his reaching age sixty-five (65)
equal to fifty percent (50%) of his highest consecutive five (5) year average
compensation. A reduced benefit is available if the Executive retires from the
Company at or after age sixty (60) and prior to age 65. The cash value of the
PSUs actually paid under the Long-Term Incentive Plan (but not under the Special
PSU Program) shall be treated as compensation in the year paid for purposes of
calculating the Executive's SERP benefit. The SERP benefit shall be reduced by
any amounts payable to Executive under any other Company or prior employer
defined benefit pension arrangement.
3.6 VACATION. The Executive shall be entitled to paid vacation in
accordance with the standard written policies of the Company with regard to
vacations of executives, but in no event less than four (4) weeks per calendar
year.
3.7 PERQUISITES. The Company shall provide to the Executive, at the
Company's cost, all perquisites to which other senior executives of the Company
are generally entitled to receive and such other perquisites which are suitable
to the character of the Executive's position with the Company and adequate for
the performance of his duties hereunder. To the extent legally permissible, the
Company shall not treat such amounts as income to the Executive. The Executive
shall also be entitled to the following special perquisites (the "Special
Perquisites"):
(a) USE OF COMPANY AIRCRAFT. The Company shall make good faith efforts to
provide the Executive upon his reasonable request with use of a
Company aircraft for the following travel: (i) commuting to and from
the Executive's primary residence and the Company's headquarters or
other facilities, (ii) business travel to perform the Executive's
duties hereunder and (iii) personal travel with the Executive's
immediate family, provided, however, that, the Executive must
accompany his family unless the Executive's absence is otherwise
approved by the Chief Executive Officer. If the Company aircraft is
unavailable, the Company shall pay the cost of first-class commercial
airline tickets for the Executive. To the extent any expenses under
(i) above result in imputed income to the Executive, the Company shall
fully gross-up reimbursement to the Executive such that the Executive
has no after tax cost for such aircraft travel. All other personal
travel will be charged to the Executive as imputed income in
accordance with the Company's standard operating procedures. The
parties recognize that in light of the Executive's position the use of
the Company aircraft for personal and family travel is desirable for
security reasons.
(b) LIVING EXPENSES. The Company shall pay the Executive's living expenses
in Providence, Rhode Island, through December 31, 2001. The expenses
must be approved by the Chief Executive Officer (which approval shall
not be unreasonably withheld) and are limited to reasonable costs
commensurate with those expenses customarily associated with a member
of the ELT. To the extent the Company's payment of such living
expenses result in imputed income to the
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Executive, the Company shall fully gross-up the Executive such that
the Executive has no after tax cost.
(c) RELOCATION. The Company shall pay the Executive's one (1) time
relocation costs, provided that the Company and Executive mutually
agree, in good faith, that such relocation will allow the Executive to
more efficiently and effectively perform his duties hereunder. The
payment of such relocation expenses shall be made in accordance with
the Company's relocation policy for comparable executive level
expenditures and shall include a home purchase program and full
gross-up for all taxes related to the relocation expenses regardless
of whether any such expenses qualify for tax deductibility.
3.8 RIGHT TO CHANGE PLANS. The Company shall not be obligated by reason of
this Section 3 to institute, maintain, or refrain from changing, amending, or
discontinuing any benefit plan, program, or perquisite, so long as such changes
are similarly applicable to senior executive employees generally, provided,
however, the right to change such plans, programs or perquisites shall not in
any way limit Executive's right to claim a Good Reason termination pursuant to
Section 5(f)(v) as a result of any such change. Notwithstanding the foregoing,
the Company shall not terminate, decrease or alter the Special Perquisites
provided in Section 3.7(a) through (c) without Executive's prior written
consent.
4. EXPENSES
Upon submission of appropriate documentation, in accordance with its
policies in effect from time to time, the Company shall pay for all ordinary and
necessary expenses, in a reasonable amount, which the Executive incurs in
performing his duties under this Agreement including travel, entertainment,
professional dues and subscriptions, and all dues, fees, and expenses associated
with membership in various professional, business, and civic associations and
societies in which the Executive participates in accordance with the Company's
policies in effect from time to time.
5. TERMINATION OF EMPLOYMENT
The Executive's employment with the Company (including but not limited to
any subsidiary or affiliate or the Company) and the Employment Term shall
terminate upon the occurrence of the first of the following events:
(a) Automatically on the date of the Executive's death.
(b) Upon thirty (30) days written notice by the Company to the Executive
of a termination due to Disability, provided such notice is delivered
during the period of Disability. The term "Disability" shall mean, for
purposes of this Agreement, the inability of the Executive, due to
injury, illness, disease or bodily or mental infirmity, to engage in
the performance of his material duties of employment with the Company
as contemplated by Section 2 herein for a period of more than one
hundred eighty (180) consecutive days or for a period that is
reasonably expected to exist for a period of more than one hundred
eighty (180) consecutive days, provided that interim returns to work
of less than ten (10) consecutive business days in duration shall not
be deemed to interfere with a determination of
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consecutive absent days if the reason for absence before and after the
interim return are the same. The existence or non-existence of a
Disability shall be determined by a physician agreed upon in good
faith by the Executive (or his representatives) and the Company. It is
expressly understood that the Disability of the Executive for a period
of one hundred eighty (180) consecutive days or less shall not
constitute a failure by him to perform his duties hereunder and shall
not be deemed a breach or default and the Executive shall receive full
compensation for any such period of Disability or for any other
temporary illness or incapacity during the term of this Agreement.
(c) Immediately upon written notice by the Company to the Executive of a
termination due to his retirement at or after the Executive's
attainment of age sixty-five (65).
(d) Immediately upon written notice by the Company to the Executive of a
termination for Cause, provided such notice is given within ninety
(90) days after the discovery by the Board or the Chief Executive
Officer of the Cause event and has been approved by the O&C Committee
at a meeting at which the Executive and his counsel had the right to
appear and address such meeting after receiving at least ten (10)
business days written notice of the meeting and reasonable detail of
the facts and circumstances claimed to provide a basis for such
termination. The term "Cause" shall mean, for purposes of this
Agreement: (i) an act or acts of willful misrepresentation, fraud or
willful dishonesty (other than good faith expense account disputes) by
the Executive which in any case is intended to result in his or
another person or entity's substantial personal enrichment at the
expense of the Company; (ii) any willful misconduct by the Executive
with regard to the Company, its business, assets or employees that
has, or was intended to have, a material adverse impact (economic or
otherwise) on the Company; (iii) any material, willful and knowing
violation by the Executive of (x) the Company's Business Conduct
Guidelines, or (y) any of his fiduciary duties to the Company which in
either case has, or was intended to have, a material adverse impact
(economic or otherwise) on the Company; (iv) the willful or reckless
behavior of the Executive with regard to a matter of a material nature
which has a material adverse impact (economic or otherwise) on the
Company; (v) the Executive's willful failure to attempt to perform his
duties under Section 2 hereof or his willful failure to attempt to
follow the legal written direction of the Board, which in either case
is not remedied within ten (10) days after receipt by the Executive of
a written notice from the Company specifying the details thereof; (vi)
the Executive's conviction of, or pleading nolo contendere or guilty
to, a felony (other than (x) a traffic infraction or (y) vicarious
liability solely as a result of his position provided the Executive
did not have actual knowledge of the actions or inactions creating the
violation of the law or the Executive relied in good faith on the
advice of counsel with regard to the legality of such action or
inaction (or the advice of other specifically qualified professionals
as to the appropriate or proper action or inaction to take with regard
to matters which are not matters of legal interpretation)); or (vii)
any other material breach by the Executive of this Agreement that is
not cured by the Executive within twenty (20) days after receipt by
the Executive of a written notice from the Company of such breach
specifying
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the details thereof. No action or inaction should be deemed willful if
not demonstrably willful and if taken or not taken by the Executive in
good faith as not being adverse to the best interests of the Company.
Reference in this paragraph (d) to the Company shall also include
direct and indirect subsidiaries of the Company, and materiality and
material adverse impact shall be measured based on the action or
inaction and the impact upon, and not the size of, the Company taken
as a whole, provided that after a Change in Control, the size of the
Company taken as a whole, shall be a relevant factor in determining
materiality and material adverse impact.
(e) Upon written notice by the Company to the Executive of an involuntary
termination without Cause. A notice by the Company of non-renewal of
the Employment Term pursuant to Section 1 above shall be deemed an
involuntary termination of the Executive by the Company without Cause
as of the end of the Employment Term, but the Executive may terminate
at any time after the receipt of such notice and shall be treated as
if he was terminated without Cause as of such date.
(f) Upon twenty (20) days written notice by the Executive to the Company
of a termination for Good Reason (which notice sets forth in
reasonable detail the facts and circumstances claimed to provide a
basis for such termination) unless the Good Reason event is cured
within such twenty (20) day period. The term "Good Reason" shall mean,
for purposes of this Agreement, without the Executive's express
written consent, the occurrence of any one or more of the following:
(i) the assignment to the Executive (other than temporarily while
Disabled or otherwise incapacitated) of duties materially inconsistent
with the Executive's then position, authorities, duties,
responsibilities, and status (including offices, titles, and reporting
requirements); (ii) any material reduction in the Executive's then
title, position, reporting lines or a material reduction (other than
temporarily while Disabled or otherwise incapacitated) in his then
status, authority, duties or responsibilities (it being acknowledged
by the parties that a material reduction will occur in the event of a
transaction in which the Company is acquired directly or indirectly by
another entity in such manner that the Company is no longer a
"reporting company" under the Securities Exchange Act of 1934 based on
its common stock being publicly traded, unless Executive becomes Chief
Financial Officer of the ultimate parent entity) or, if then a
director of the Company, failure to be nominated or reelected as a
director of the Company or removal as such, provided, however, that it
is not intended hereby that any incidental reallocation or
reassignment of personnel or minor changes in the areas reporting to
the Executive (so long as such changes are not core functions of
Executive's responsibilities) shall constitute Good Reason for the
Executive's resignation unless the cumulative result of such actions
is to so modify the Executive's role so as to make it materially
different from such role immediately prior to such actions; (iii)
relocation (A) of the Executive from the principal office of the
Company (excluding reasonable travel on the Company's business to an
extent substantially consistent with the Executive's business
obligations) or (B) of the principal office of the Company to a
location which is at least fifty (50) miles from the Company's current
headquarters, provided, however, in the case of clause (B), if
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the Executive at the time of such relocation is not located at the
principal office of the Company, such relocation provision shall apply
based on his then location but shall not cover a relocation to the
principal office prior to a Change in Control; (iv) a reduction by the
Company in the Executive's Base Salary; (v) a reduction in the
Executive's aggregate level of participation in any of the Company's
short and/or long-term incentive compensation plans, or employee
benefit or retirement plans, policies, practices, or arrangements in
which the Executive participated as of the Effective Date, or, after a
Change in Control, participated immediately prior to the Change in
Control that in either case has a disproportionate adverse aggregate
impact on the Executive as compared to other similarly situated
executives; (vi) Executive's voluntary termination of employment for
any reason during the thirty (30) day period following the one (1)
year anniversary of a Change in Control; (vii) the failure of the
Company to obtain and deliver to the Executive a satisfactory written
agreement from any successor to the Company to assume and agree to
perform this Agreement; or (viii) any other material breach by the
Company of this Agreement.
(g) Upon written notice by the Executive to the Company of the Executive's
voluntary termination of employment without Good Reason (which the
Company may, in its sole discretion, make effective earlier than any
termination date indicated in the Executive's notice). A notice by the
Executive of non-renewal of the Employment Term pursuant to Section 1
above shall be deemed a voluntary termination by the Executive without
Good Reason as of the end of the Employment Term.
6. CONSEQUENCES OF A TERMINATION OF EMPLOYMENT
6.1 TERMINATION DUE TO DEATH OR RETIREMENT. If the Employment Term ends on
account of the Executive's termination due to death pursuant to Section 5(a)
above or retirement pursuant to Section 5(c) above, the Executive (or the
Executive's surviving spouse, or other beneficiary as so designated by the
Executive during his lifetime, or to the Executive's estate, as appropriate)
shall be entitled, in lieu of any other payments or benefits, to (i) payment
promptly of any unpaid Base Salary, unpaid annual incentive compensation (for
the preceding fiscal year) and any accrued vacation, (ii) reimbursement for any
unreimbursed business expenses incurred prior to the date of termination, (iii)
any amounts, benefits or fringes due under any equity, benefit or fringe plan,
grant or program in accordance with the terms of said plan, grant or program but
without duplication (collectively, the "Accrued Obligations") and (iv) a
pro-rata portion of the annual incentive compensation for the year of
Executive's termination calculated as follows: the product of (x) the
Executive's prior year bonus (or, if a termination occurs prior to the
determination of the 2001 year bonus, the target bonus for 2001), multiplied by
(y) a fraction, the numerator of which is the number of days of the current
fiscal year during which Executive was employed by the Company, and the
denominator of which is 365, provided, however, Executive shall only receive
such pro-rata bonus if other senior executives remaining employed by the Company
through the end of such year receive an annual bonus with respect to such year
(a "Pro Rata Bonus"). In addition, Executive shall be fully vested in the Stock
Options and the Restricted Stock (the "Special Vesting") and the Company shall
pay the COBRA premiums for eighteen (18) months (or if earlier, until
termination of COBRA coverage for Executive's dependents ("COBRA Coverage").
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6.2 TERMINATION DUE TO DISABILITY. If the Employment Term ends as a result
of Disability pursuant to Section 5(b) above, the Executive shall be entitled,
in lieu of any other payments or benefits, to any Accrued Obligations and the
following:
(a) The Pro Rata Bonus.
(b) The Special Vesting.
(c) COBRA Coverage for Executive and his dependents.
(d) The Executive shall be deemed to have satisfied the definition of
"total disability" under the 1994 Long-Term Incentive Plan or the
equivalent definition under any successor plan thereto.
6.3 INVOLUNTARY TERMINATION BY THE COMPANY WITHOUT CAUSE OR TERMINATION BY
THE EXECUTIVE FOR GOOD REASON. If the Executive is involuntarily terminated by
the Company without Cause in accordance with Section 5(e) above or the Executive
terminates his employment for Good Reason in accordance with Section 5(f) above,
the Executive shall be entitled, in lieu of any other payments or benefits,
subject to Section 7(b) hereof, to any Accrued Obligations and the following:
(a) A Pro Rata Bonus.
(b) Continued payment off payroll for two (2) years (in approximately
equal monthly installments) of an amount equal to two (2) times the
sum of (i) the Executive's Base Salary and (ii) the higher of (x) the
Executive's target incentive compensation established for the fiscal
year in which the Executive's termination occurs or (y) a multiple
thereof equal to the product of such target amount and the multiple of
target earned by the Executive for the prior fiscal year (whether or
not deferred).
(c) To the extent eligible at such time or, if the Executive would be
eligible with credit for an additional two (2) years of age and
service credit, coverage under all applicable retiree health and other
retiree welfare plans for the Executive and his dependents (including,
if he is only eligible because of the extra age and service credit, an
adjustment, to the extent necessary, to put the Executive in the same
after-tax position as if he had been eligible for such coverage) and,
if not eligible for continued health coverage under the retiree health
plan, payment of the Executive's and Executive's eligible dependents'
COBRA continuation health coverage premiums for the Company's health
insurance plan that generally applies to senior executives for the two
(2) year period following the date of termination or, if earlier,
until the Executive and Executive's dependents cease to be eligible
for such coverage, provided that, if COBRA coverage cannot be provided
for the full period, any excess period shall be covered under (d)
below (and further provided that, if such premiums are taxable to the
Executive, an adjustment such that the Executive has no after tax cost
for the providing of such COBRA coverage).
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(d) To the extent eligible on the date of termination, continued
participation, at no additional after tax cost to the Executive than
the Executive would have as an employee, in all welfare plans (other
than medical plans covered under (c) above), until two (2) years after
the date of termination; provided, however, that in the event the
Executive obtains other employment that offers substantially similar
or improved benefits, as to any particular welfare plan, such
continuation of coverage by the Company for such benefits under such
plan shall immediately cease. To the extent such coverage cannot be
provided under the Company's welfare benefit plans without
jeopardizing the tax status of such plans, for underwriting reasons or
because of the tax impact on the Executive, the Company shall pay the
Executive an amount such that the Executive can purchase such benefits
separately at no greater after tax cost to the Executive than the
Executive would have had if the benefits were provided to the
Executive as an employee.
(e) Immediate full vesting of the Stock Options, the Restricted Stock and
any outstanding stock options or other equity award that would vest
within two (2) years after such termination of employment as if the
Executive had continued employment for such two (2) year period, to
the extent permitted under the plan or grant, or if such vesting is
not permitted, a cash payment equal to the difference between the fair
market value of the shares covered by the unvested options and the
exercise price of such unvested options (the "Spread") on the date of
termination, or, in the case of Restricted Stock and other non-option
equity grants that would have vested if permitted, the fair market
value of such Restricted Stock or other non-option equity as of the
date of termination. In addition, to the extent the Stock Options or
any other options are exercisable for less than two and three-
quarters (2-3/4) years after the Executive's termination, the
Executive also shall receive promptly following his termination a cash
payment equal to the estimated cash value of such options for the
lesser of two and three-quarters (2-3/4) years or the remainder of the
respective terms of such options (calculated in accordance with the
same Black-Scholes methodology used for the Company's then latest
distributed proxy statement or, if not so used, for internal valuation
of the last stock option grants made by the Company prior to the
termination). The terms of the Executive's outstanding options are
deemed to be modified to the extent required by this Section 6.3 (g).
(f) Payment when it would otherwise be paid in accordance with the 1994
Long-Term Incentive Plan of any amount due with regard to performance
share units outstanding on the date of termination to the extent
permitted under such plan, plus, outside of such plan, when it would
otherwise have been paid, an amount equal to the amount the Executive
would have received with regard to any performance share units
outstanding at the time of termination that could not be so paid. For
purposes of calculating the foregoing amounts, all discretionary
performance targets relating to the Executive's individual performance
will be deemed to be fully achieved and the actual level of
achievement of all financial performance targets will be determined as
if the Executive continued to be employed through the end of the
applicable measuring period.
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(g) Immediate full vesting of the Executive's accounts under the Deferred
Income Plan, and to the extent not permitted under such plan, a cash
payment outside of the plan equal to the value of the amount that
would have vested under the plan.
(h) Continuation of participation for two (2) years in the Company's
programs with regard to tax preparation assistance and financial
planning assistance, club dues and automobile (but based on the
automobile then being used and no new one), in accordance with the
Company's programs in effect at the time of the termination.
(i) To the extent that with regard to any particular item, the Executive
would receive better treatment under the applicable Company plan or
program, such better treatment shall apply.
6.4 TERMINATION BY THE COMPANY FOR CAUSE OR TERMINATION BY THE EXECUTIVE
WITHOUT GOOD REASON. If the Executive is terminated by the Company for Cause or
the Executive terminates his employment without Good Reason, the Executive shall
be entitled to receive all Accrued Obligations.
7. NO MITIGATION/NO OFFSET/RELEASE
(a) In the event of any termination of employment hereunder, the Executive
shall be under no obligation to seek other employment and there shall
be no offset against any amounts due the Executive under this
Agreement on account of any remuneration attributable to any
subsequent employment that the Executive may obtain. The amounts
payable hereunder shall not be subject to setoff, counterclaim,
recoupment, defense or other right which the Company may have against
the Executive or others, except as specifically set forth in Section 9
hereof or upon obtaining by the Company of a final unappealable
judgement against the Executive.
(b) Any amounts payable and benefits or additional rights provided
pursuant to Section 6.2, 6.3 or Section 8.1 beyond Accrued Obligations
and amounts or rights due under law, and, in the case of Section 6.3
and Section 8.1 beyond the sum of any amounts due (without execution
of a release) under the Company severance program then in effect, or,
if greater, three (3) months Base Salary as severance, shall only be
payable if the Executive delivers to the Company a release of all
claims of the Executive (other than those specifically payable or
providable hereunder on or upon the applicable type of termination and
any rights of indemnification under the Company's organizational
documents) with regard to the Company, its subsidiaries and related
entities and their respective past or present officers, directors and
employees in such form as reasonably requested by the Company (for
clarification, the parties intend that (i) any such release not go
beyond a release and the provisions necessary to make it effective but
(ii) this parenthetical clause not be construed as substantively
modifying the text of this subsection).
(c) Upon any termination of employment, upon the request of the Company,
the Executive shall deliver to the Company a resignation from all
offices and directorships and fiduciary positions of the Executive in
which the Executive is serving with, or at the request of, the Company
or its subsidiaries, affiliates or benefit plans.
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(d) The amounts and benefits provided under Sections 6 and 8 hereof are
intended to be inclusive and not duplicative of the amounts and
benefits due under the Company's employee benefit plans and programs
to the extent they are duplicative.
8. CHANGE IN CONTROL
8.1 EMPLOYMENT TERMINATION IN CONNECTION WITH A CHANGE IN CONTROL. In the
event of a Qualifying Termination (as defined below) during the period
commencing one-hundred eighty (180) days prior to the effective date of a Change
in Control and terminating on the second anniversary of the effective date of a
Change in Control (the "Change in Control Protection Period"), then in lieu of
the benefits provided to the Executive under Section 6.3 of this Agreement, the
Company shall pay the Executive the following amounts within (except as
otherwise provided) thirty (30) business days following the Qualifying
Termination (or, if later, the effective date of the Change in Control; in which
case any amounts or benefits previously paid, pursuant to Section 6 shall be
setoff against those under this Section 8) and provide the following benefits:
(a) Any Accrued Obligations.
(b) A lump-sum cash payment equal to three (3) times the highest rate of
the Executive's Base Salary rate in effect at any time up to and
including the date of the Executive's termination.
(c) A lump-sum cash payment equal to the Prorated Portion of the greater
of: (i) the Executive's target annual incentive compensation award
established for the fiscal year during which the Executive's award
termination occurs, or (ii) the Executive's earned annual incentive
award for the fiscal year prior to the fiscal year in which the
earlier of the Change in Control or the Qualifying Termination occurs
(whether or not deferred).
The "Prorated Portion" of the foregoing amount shall be determined by
multiplying such amount by a fraction, the numerator of which is the
number of days during the fiscal year of termination that the
Executive is employed by the Company, and the denominator of which is,
three hundred sixty-five (365).
(d) A lump-sum cash payment equal to three (3) times the greater of: (i)
the Executive's highest annual incentive compensation earned over the
three (3) fiscal years ending prior to the earlier of the Change in
Control or the Qualifying Termination (whether or not deferred); or
(ii) the Executive's target incentive compensation established for the
fiscal year in which the Executive's date of termination occurs.
(e) To the extent the Executive is eligible, was eligible prior or after
the Change in Control (or, if earlier, the Qualifying Termination) or
if the Executive would be eligible with credit for an additional three
(3) years of age and service credit, coverage under all applicable
retiree health and other retiree welfare plans for the Executive and
the Executive's eligible dependents (including an adjustment to the
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extent necessary to put the Executive on the same after tax basis as
if the Executive had been eligible for such coverage).
(f) To the extent eligible prior or after the Change in Control (or, if
earlier, the Qualifying Termination), continued participation,
(coordinated with (e) above to the extent duplicative), at no
additional after tax cost to the Executive than the Executive would
have as an employee, in all welfare plans, until three (3) years after
the date of termination, provided, however, that in the event the
Executive obtains other employment that offers substantially similar
or improved benefits, as to any particular welfare plan, such
continuation of coverage by the Company for such similar or improved
benefit under such plan shall immediately cease. To the extent such
coverage cannot be provided under the Company's welfare benefit plans
without jeopardizing the tax status of such plans, for underwriting
reasons or because of the tax impact on the Executive, the Company
shall pay the Executive an amount such that the Executive can purchase
such benefits separately at no greater after tax cost to him than he
would have had if the benefits were provided to him as an employee.
(g) A lump-sum cash payment of the actuarial present value equivalent (as
determined in accordance with the most favorable (to the Executive)
overall actuarial assumptions and subsidies in any of the Company's
tax-qualified or nonqualified type defined benefit pension plans in
which the Executive then participates) of the accrued benefits accrued
by the Executive as of the date of termination under the terms of any
nonqualified defined benefit type retirement plan, including but not
limited to, the Amended and Restated Supplemental Executive Retirement
Plan for Textron Inc. Key Executives and the Supplemental Benefits
Plan and assuming the benefit was fully vested without regard to any
minimum age or service requirements. For this purpose, such benefits
shall be calculated under the assumption that the Executive's
employment continued following the date of termination for three (3)
full years (i.e., three (3) additional years of age (including, but
not limited to, for purposes of determining the actuarial present
value), compensation and service credits shall be added).
(h) Three (3) times the amount of the maximum Company contribution or
match to any defined contribution type plan in which the Executive
participates.
(i) A lump-sum cash payment of the product of (i) the Interest Factor (as
determined in the next sentence) multiplied by (ii) the Executive's
entire account balance under the Deferred Income Plan (or any
replacement therefor), plus an additional amount equal to three (3)
times the match which the Company made for the Executive to such plan
for the fiscal year ending immediately prior to the earlier of the
Change in Control or the Qualifying Termination. The "Interest Factor"
shall be equal to one (1) plus three (3) times the rate of earnings of
the Executive's account under such plan for the fiscal year ending
immediately prior to his termination.
(j) Immediate full vesting of any outstanding stock options, performance
share units and other equity awards (and lapse of any forfeiture
provisions) to the extent
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permitted under the plan or grant, or if full vesting is not permitted
with regard to stock options, a cash payment equal to the difference
between the fair market value of the shares covered by the unvested
options and the exercise price of such unvested options on such
unvested options on the date of termination (or, if later, the date of
the Change in Control) or, in the case of Restricted Stock and other
non-option equity grants that would have vested if permitted, the fair
market value of such Restricted Stock or other non-option equity as of
the date of termination. In addition, to the extent any stock options
are exercisable for less than three (3) years after the Executive's
termination (or, if less, the remainder of the respective terms of
such options, including any termination of exercisability of all
Company stock options in connection with the Change in Control or a
merger related thereto), the Executive also shall receive, promptly
following his termination, a cash payment equal to the estimated
future value of such options for the lesser of three (3) years or the
remainder of the respective terms of such options (calculated in
accordance with the same Black-Scholes methodology used for the
Company's then latest distributed proxy statement or, if not so used,
for internal valuation of the last stock option grants made by the
Company prior to the earlier of the Qualifying Termination or the
Change in Control).
(k) Outplacement services at a level commensurate with the Executive's
position, including use of an executive office and secretary, for a
period of one (1) year commencing on the date of termination but in no
event extending beyond the date on which the Executive commences other
full time employment.
(l) Continuation of participation for three (3) additional years in the
Company's programs with regard to tax preparation assistance and
financial planning assistance, club dues and automobile (but based on
the automobile then being used and no new one), in accordance with the
Company's programs in effect at the time of the Change in Control.
(m) To the extent that with regard to any particular item, the Executive
would receive better treatment under the applicable Company plan or
program, such better treatment shall apply.
For purposes of this Section 8, a Qualifying Termination shall mean any
termination of the Executive's employment (i) by the Company without Cause, or
(ii) by the Executive for Good Reason.
8.2 DEFINITION OF "CHANGE IN CONTROL." A Change in Control of the Company
shall be deemed to have occurred as of the first day any one or more of the
following conditions shall have been satisfied:
(a) Any "person" or "group" (within the meaning of Section 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) other than the Company, any trustee or other
fiduciary holding Company common stock under an employee benefit plan
of the Company or a related company, or any corporation which is
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of the
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Company's common stock, is or becomes the beneficial owner (as defined
in Rule 13d-3 under the Exchange Act) of more than thirty percent
(30%) of the then outstanding voting stock;
(b) During any period of two (2) consecutive years, individuals who at the
beginning of such period constitute the Board and any new director
whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds
of the directors then still in office who either were directors at the
beginning of the two year period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute at least a majority of the Board;
(c) The consummation of a merger or consolidation of the Company with any
other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding
or being converted into voting securities of the surviving entity)
more than fifty percent (50%) of the combined voting securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation; or
(d) The approval of the stockholders of the Company of a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of its assets.
8.3 EXCISE TAX EQUALIZATION PAYMENT. In the event that the Executive
becomes entitled to payments and/or benefits which would constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, the provisions
of Exhibit A will apply.
9. NONCOMPETITION, CONFIDENTIALITY AND NONDISPARAGEMENT
9.1 AGREEMENT NOT TO COMPETE.
(a) The Executive agrees that for a period of two (2) years after the
termination of the Executive's employment (the "Non-Compete Period"),
the Executive will not engage in Competition with the Company with the
Listed Companies, including, but not limited to, (i) soliciting
customers, business or orders for, or selling any products and
services in, Competition with the Company for such Listed Companies or
(ii) diverting, enticing, or otherwise taking away customers, business
or orders of the Company, or attempting to do so, in either case in
Competition with the Company for such Listed Companies. The Listed
Companies are United Technologies Corporation, General Dynamics
Corporation, Xxxxxxx Corporation, Xxxxxxx and Tyco International Ltd.
The Listed Companies may not be amended or added to without the prior
written consent of both parties hereto.
(b) The Executive agrees that the restrictions contained in this Section 9
are necessary for the protection of the business and goodwill of the
Company because of the trade secrets within the Executive's knowledge
and are considered by the Executive to be reasonable for such purpose.
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9.2 DEFINITIONS.
(a) "Competition" shall mean engaging in, as an employee, director,
partner, principal, shareholder, consultant, advisor, independent
contractor or similar capacity, with the Listed Companies.
Notwithstanding anything else in this Section 9, Competition shall not
include: (i) holding five percent (5%) or less of an interest in the
equity or debt of any publicly traded company, (ii) engaging in any
activity with the prior written approval of the Chief Executive
Officer or the O&C Committee, (iii) the providing of
accounting/auditing services in an accounting firm that audits or
provides services to Listed Companies, provided that the Executive
does not personally represent such Listed Companies, or (iv) the
employment by, or provision of services to, an investment banking firm
or consulting firm that provides services to Listed Companies,
provided that the Executive does not personally represent or provide
services to such Listed Companies.
(b) For purposes of this Section 9, "Company" shall mean the Company and
its subsidiaries and affiliates.
9.3 AGREEMENT NOT TO ENGAGE IN CERTAIN SOLICITATION. The Executive agrees
that the Executive will not, during the Executive's employment with the Company
or during the two (2) year period thereafter, directly or indirectly, solicit or
induce, or attempt to solicit or induce, any non-clerical employee(s), sales
representative(s), agent(s), or consultant(s) of the Company to terminate such
person's employment, representation or other association with the Company for
the purpose of affiliating with any entity with which the Executive is
associated ("Solicitation").
9.4 CONFIDENTIAL INFORMATION.
(a) The Executive specifically acknowledges that any trade secrets or
confidential business and technical information of the Company or its
vendors, suppliers or customers, whether reduced to writing,
maintained on any form of electronic media, or maintained in mind or
memory and whether compiled by the Executive or the Company
(collectively, "Confidential Information"), derives independent
economic value from not being readily known to or ascertainable by
proper means by others; that reasonable efforts have been made by the
Company to maintain the secrecy of such information; that such
information is the sole property of the Company or its vendors,
suppliers, or customers and that any retention, use or disclosure of
such information by the Executive during the Employment Term (except
in the course of performing duties and obligations of employment with
the Company) or any time after termination thereof, shall constitute
misappropriation of the trade secrets of the Company or its vendors,
suppliers, or customers, provided that Confidential Information shall
not include: (i) information that is at the time of disclosure public
knowledge or generally known within the industry, (ii) information
deemed in good faith by the Executive, while employed by the Company,
desirable to disclose in the course of performing the Executive's
duties, (iii) information the disclosure of which the Executive in
good xxxxx xxxxx necessary in defense of the Executive's rights
provided such disclosure by the
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Executive is limited to only disclose as necessary for such purpose,
or (iv) information disclosed by the Executive to comply with a court,
or other lawful compulsory, order compelling him to do so, provided
the Executive gives the Company prompt notice of the receipt of such
order and the disclosure by the Executive is limited to only
disclosure necessary for such purpose.
(b) The Executive acknowledges that the Company from time to time may have
agreements with other persons or with the United States Government, or
agencies thereof, that impose obligations or restrictions on the
Company regarding inventions made during the course of work under such
agreements or regarding the confidential nature of such work. If the
Executive's duties hereunder will require disclosures to be made to
him subject to such obligations and restrictions, the Executive agrees
to be bound by them.
9.5 SCOPE OF RESTRICTIONS. If, at the time of enforcement of this Section
9, a court holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum period,
scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law.
9.6 REMEDIES.
(a) In the event of a material breach or threatened material breach of
Section 9.1(a), Section 9.3, Section 9.4 or Section 9.10, the Company,
in addition to its other remedies at law or in equity, shall be
entitled to injunctive or other equitable relief in order to enforce
or prevent any violations of the provisions of this Section 9. Except
as specifically provided with regard to Listed Companies, the Company
agrees that it will not assert to enjoin or otherwise limit the
Executive's activities based on an argument of inevitable disclosure
of confidential information.
(b) Upon written request of the Executive, the Chief Executive Officer of
the Company shall consider, in good faith, and within ten (10) days
after receipt of the latter of (i) such written notice and (ii) any
information reasonably requested in accordance with the last sentence
of this subsection, notify the Executive in writing whether or not the
Company will waive the limitation prohibiting the Executive from
working for a Listed Company during the Non-Compete Period, provided,
however, that if the Company does not reply within ten (10) days, the
Company shall be deemed to have waived such limitation. The Executive
shall promptly provide the Company with such information as it may
reasonably request to evaluate whether or not it should waive such
limitation.
(c) In the event the Executive breaches Section 9.1(a), the Company may
immediately cease payment to the Executive of all future amounts due
under Section 6.3(b), as well as otherwise specifically provided in
any other plan, grant or program.
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9.7 UNIFORMITY. In no event shall any definitions of Competition or
Solicitation (or a similar provision) as it applies to the Executive with regard
to any plan of program or grant of the Company be interpreted to be any broader
than as set forth in this Section 9.
9.8 DELIVERY OF DOCUMENTS. Upon termination of this Agreement or at any
other time upon request by the Company, the Executive shall promptly deliver to
the Company all records, files, memoranda, notes, designs, data, reports, price
lists, customer lists, drawings, plans, computer programs, software, software
documentation, sketches, laboratory and research notebooks and other documents
(and all copies or reproductions of such materials in his possession or control)
belonging to the Company. Notwithstanding the foregoing, the Executive may
retain his rolodex and similar phone directories.
9.9 NONDISPARAGEMENT.
(a) During the Employment Term and thereafter, the Executive shall not
with willful intent to damage economically or as to reputation or
vindictively disparage the Company, its subsidiaries or their past or
present respective officers, directors or employees (the "Protected
Group"), provided that the foregoing shall not apply to (i) actions or
statements taken or made by the Executive while employed by the
Company in good faith as fulfilling the Executive's duties with the
Company or otherwise at the request of the Company, (ii) statements
the Executive believes to be truthful that are made in compliance with
legal process or governmental inquiry, (iii) as the Executive in good
xxxxx xxxxx necessary to rebut any untrue or misleading public
statements made about him or any other member of the Protected Group,
(iv) statements made in good faith by the Executive to rebut untrue or
misleading statements made about him or any other member of the
Protected Group by any member of the Protected Group, and (v) normal
commercial puffery in a competitive business situation. No member of
the Protected Group shall be a third party beneficiary of this Section
9.9(a).
(b) During the Employment Term and thereafter, neither the Company
officially nor any then member of the Executive Leadership Team (or
the equivalent) of the Company, as such term is currently used within
the Company, shall with willful intent to damage the Executive
economically or as to reputation or otherwise vindictively disparage
the Executive, provided the foregoing shall not apply to (i) actions
or statements taken or made in good faith within the Company in
fulfilling duties with the Company, (ii) truthful statements made in
compliance with legal process, governmental inquiry or as required by
legal filing or disclosure requirements, (iii) as in good faith deemed
necessary to rebut any untrue or misleading statements by the
Executive as to any member of the Protected Group, or (iv) normal
commercial puffery in a competitive business situation.
(c) In the event of a material breach or threatened material breach of
clauses (a) or (b) above, the Company or the Executive, as the case
may be, in addition to its or the Executive's other remedies at law or
in equity, shall be entitled to injunctive or other equitable relief
in order to enforce or prevent any violations of this Section 9.9.
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9.10 POOLING OF INTERESTS. If the Company is involved in any proposed
business combination that is contemplated to be accounted for as a pooling of
interests, the Executive agrees to cooperate with the reasonable requests of the
Company with regard to the exercise of stock options, the sale of Company stock
or other matters that could affect the ability of the combination to be
accounted for as a pooling of interests.
10. LIABILITY INSURANCE AND INDEMNIFICATION
The Company shall cover the Executive under directors and officers
liability insurance both during and, while potential liability exists, after the
Employment Term in the same amount and to the same extent, if any, as the
Company covers its other officers and directors.
11. ASSIGNMENT
11.1 ASSIGNMENT BY THE COMPANY. This Agreement may and shall be assigned or
transferred to, and shall be binding upon and shall inure to the benefit of, any
successor of the Company, and any such successor shall be deemed substituted for
all purposes of the "Company" under the terms of this Agreement. As used in this
Agreement, the term "successor" shall mean any person, firm, corporation or
business entity which at any time, whether by merger, purchase, or otherwise,
acquires all or substantially all of the assets of the Company. Notwithstanding
such assignment, the Company shall remain, with such successor, jointly and
severally liable for all its obligations hereunder. Except as herein provided,
this Agreement may not otherwise be assigned by the Company.
11.2 ASSIGNMENT BY THE EXECUTIVE. This Agreement is not assignable by the
Executive. This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, and
administrators, successors, heirs, distributees, devisees, and legatees. If the
Executive should die while any amounts payable to the Executive hereunder remain
outstanding, all such amounts, unless otherwise provided herein, shall be paid
in accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, in the absence of such designee, to the
Executive's estate.
12. LEGAL REMEDIES
12.1 PAYMENT OF LEGAL FEES. The Company shall pay the Executive's
reasonable legal fees and costs associated with entering into this Agreement. To
the fullest extent permitted by law, the Company shall promptly pay upon
submission of statements all legal and other professional fees, costs of
litigation, prejudgment interest, and other expenses incurred in connection with
any dispute arising hereunder; provided, however, the Company shall be
reimbursed by the Executive for (i) the fees and expenses advanced in the event
the Executive's claim is in a material manner in bad faith or frivolous and the
arbitrator or court, as applicable, determines that the reimbursement of such
fees and expenses is appropriate, or (ii) to the extent that the arbitrator or
court, as appropriate, determines that such legal and other professional fees
are clearly and demonstrably unreasonable.
12.2 ARBITRATION. All disputes and controversies arising under or in
connection with this Agreement, other than the seeking of injunctive or other
equitable relief pursuant to Section 9 hereof, shall be settled by arbitration
conducted before a panel of three (3) arbitrators sitting in New York City, New
York, or such other location agreed by the parties hereto, in accordance
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with the rules for expedited resolution of commercial disputes of the American
Arbitration Association then in effect. The determination of the majority of the
arbitrators shall be final and binding on the parties. Judgment may be entered
on the award of the arbitrator in any court having proper jurisdiction. All
expenses of such arbitration, including the fees and expenses of the counsel of
the Executive, shall be borne by the Company and the Executive shall be entitled
to reimbursement of his expenses as provided in Section 12.1 hereof.
12.3 NOTICE. Any notices, requests, demands, or other communications
provided for by this Agreement shall be sufficient if in writing and if
delivered personally, sent by telecopier, sent by an overnight service or sent
by registered or certified mail. Notice to the Executive not delivered
personally (or by telecopy where the Executive is known to be) shall be sent to
the last address on the books of the Company, and notice to the Company not
delivered personally (or by telecopy to the known personal telecopy of the
person it is being sent to) shall be sent to it at its principal office. All
notices to the Company shall be delivered to the Chief Executive Officer with a
copy to the senior legal officer. Delivery shall be deemed to occur on the
earlier of actual receipt or tender and rejection by the intended recipient.
12.4 CONTINUED PAYMENTS. In the event after a Change in Control either
party files for arbitration to resolve any dispute as to whether a termination
is for Cause or Good Reason, until such dispute is determined by the
arbitrators, the Executive shall continue to be treated economically and benefit
wise in the manner asserted by him in the arbitration effective as of the date
of the filing of the arbitration, subject to the Executive promptly refunding
any amounts paid to him, paying the cost of any benefits provided to him and
paying to the Company the profits in any stock option or other equity awards
exercised or otherwise realized by him during the pendency of the arbitration
which he is ultimately held not to be entitled to; provided the arbitrators may
terminate such payments and benefits in the event that they determine at any
point that the Executive is intentionally delaying conclusion of the
arbitration.
13. MISCELLANEOUS
13.1 ENTIRE AGREEMENT. This Agreement, except to the extent specifically
provided otherwise herein, supersedes any prior agreements or understandings,
oral or written, between the parties hereto or between the Executive and the
Company, with respect to the subject matter hereof and constitutes the entire
Agreement of the parties with respect to the subject matter hereof. To the
extent any severance plan or program of the Company that would apply to the
Executive is more generous to the Executive than the provisions hereof, the
Executive shall be entitled to any additional payments or benefits which are not
duplicative, but shall otherwise not be eligible for such plan or program.
13.2 MODIFICATION. This Agreement shall not be varied, altered, modified,
canceled, changed, or in any way amended, nor any provision hereof waived,
except by mutual agreement of the parties in a written instrument executed by
the parties hereto or their legal representatives.
13.3 SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect.
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13.4 COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.
13.5 TAX WITHHOLDING. The Company may withhold from any benefits payable
under this Agreement all federal, state, city, or other taxes as may be required
pursuant to any law or governmental regulation or ruling.
13.6 BENEFICIARIES. The Executive may designate one or more persons or
entities as the primary and/or contingent beneficiaries of any amounts to be
received under this Agreement. Such designation must be in the form of a signed
writing acceptable to the Board or the Board's designee. The Executive may make
or change such designation at any time.
13.7 REPRESENTATION. The Executive represents that the Executive's
employment by the Company and the performance by the Executive of his
obligations under this Agreement do not, and shall not, breach any agreement
that obligates him to keep in confidence any trade secrets or confidential or
proprietary information of his or of any other party, to write or consult to any
other party or to refrain from competing, directly or indirectly, with the
business of any other party. The Executive shall not disclose to the Company,
and the Company shall not request that the Executive disclose, any trade secrets
or confidential or proprietary information of any other party.
13.8 CONSTRUCTION. No provision of this Agreement shall be interpreted or
construed against any party because that party or its legal representative
drafted that provision. The captions and headings of the Sections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement. Unless the context of this Agreement clearly requires
otherwise: (a) references to the plural include the singular, the singular the
plural, and the part the whole, (b) references to one gender include all
genders, (c) "or" has the inclusive meaning frequently identified with the
phrase "and/or," (d) "including" has the inclusive meaning frequently identified
with the phrase "including but not limited to" or "including without
limitation," (e) references to "hereunder," "herein" or "hereof" relate to this
Agreement as a whole, and (f) the terms "dollars" and "$" refer to United States
dollars. Section, subsection, exhibit and schedule references are to this
Agreement as originally executed unless otherwise specified. Any reference
herein to any agreement, including this Agreement, shall be deemed to include
such agreement as it may be modified, varied, amended or supplemented from time
to time. Any reference herein to any statute, rule or regulation shall be deemed
to include such statute, rule or regulation as it may be modified, varied,
amended or supplemented from time to time. Any reference herein to any person
shall be deemed to include the heirs, personal representatives, successors and
permitted assigns of such person.
14. GOVERNING LAW
The provisions of this Agreement shall be construed and enforced in
accordance with the laws of the state of Delaware, without regard to any
otherwise applicable principles of conflicts of laws.
IN WITNESS WHEREOF, the Executive and the Company have executed this
Agreement, as of the day and year first above written.
/s/ Xxxxxxxx X. Xxxxxx
----------------------
XXXXXXXX X. XXXXXX
TEXTRON INC.
By: /s/ Xxxxxxxx X'Xxxxxxx
---------------------------------
Name: Xxxxxxxx X'Xxxxxxx
Title: Executive Vice President
and General Counsel
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EXHIBIT A
PARACHUTE GROSS UP
(a) In the event that the Executive shall become entitled to payments
and/or benefits provided by this Agreement or any other amounts in the "nature
of compensation" (whether pursuant to the terms of this Agreement or any other
plan, arrangement or agreement with the Company, any person whose actions result
in a change of ownership or effective control covered by Section 280G(b)(2) of
the Code or any person affiliated with the Company or such person) as a result
of such change in ownership or effective control (collectively the "Company
Payments"), and such Company Payments will be subject to the tax (the "Excise
Tax") imposed by Section 4999 of the Code (and any similar tax that may
hereafter be imposed by any taxing authority) the Company shall pay to the
Executive at the time specified in subsection (d) below: (i) an additional
amount (the "Gross-up Payment") such that the net amount retained by the
Executive, after deduction of any Excise Tax on the Company Payments and any
U.S. federal, state, and for local income or payroll tax upon the Gross-up
Payment provided for by this paragraph (a), but before deduction for any U.S.
federal, state, and local income or payroll tax on the Company Payments, shall
be equal to the Company Payments and (ii) an amount equal to the product of any
deductions disallowed for federal, state or local income tax purposes because of
the inclusion of the Gross-Up Payment in the Executive's adjusted gross income
multiplied by the highest applicable marginal rate of federal, state or local
income taxation, respectively, for the calendar year in which the Gross-Up
Payment is to be made.
(b) For purposes of determining whether any of the Company Payments and
Gross-up Payments (collectively the "Total Payments") will be subject to the
Excise Tax and the amount of such Excise Tax, (x) the Total Payments shall be
treated as "parachute payments" within the meaning of Section 280G(b)(2) of the
Code, and all "parachute payments" in excess of the "base amount" (as defined
under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise
Tax, unless and except to the extent that, in the opinion of the Company's
independent certified public accountants appointed prior to any change in
ownership (as defined under Code Section 280G(b)(2)) or tax counsel selected by
such accountants (the "Accountants") such Total Payments (in whole or in part)
either do not constitute "parachute payments," represent reasonable compensation
for services actually rendered within the meaning of Section 280G(b)(4) of the
Code in excess of the "base amount" or are otherwise not subject to the Excise
Tax, and (y) the value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Accountants in accordance with the principles
of Section 280G of the Code.
(c) For purposes of determining the amount of the Gross-up Payment, the
Executive shall be deemed to pay U.S. federal income taxes at the highest
marginal rate of U.S. federal income taxation in the calendar year in which the
Gross-up Payment is to be made and state and local income taxes at the highest
marginal rate of taxation in the state and locality of the Executive's residence
for the calendar year in which the Company Payment is to be made, net of the
maximum reduction in U.S. federal income taxes which could be obtained from
deduction of such state and local taxes if paid in such year. In the event that
the Excise Tax is subsequently determined by the Accountants (or by the Internal
Revenue Service or other taxing authority) to be less than the amount taken into
account hereunder at the time the Gross-up Payment is made, the Executive shall
repay to the Company, at the time that the amount of such reduction in Excise
Tax is finally determined, the portion of the prior Gross-up Payment
attributable to such
23
reduction (plus the portion of the Gross-up Payment attributable to the Excise
Tax and U.S. federal, state and local income tax imposed on the portion of the
Gross-up Payment being repaid by the Executive if such repayment results in a
reduction in Excise Tax or a U.S. federal, state and local income tax
deduction), plus interest on the amount of such repayment at the rate provided
in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the
event any portion of the Gross-up Payment to be refunded to the Company has been
paid to any U.S. federal, state and local tax authority, repayment thereof (and
related amounts) shall not be required until actual refund or credit of such
portion has been made to the Executive, and interest payable to the Company
shall not exceed the interest received or credited to the Executive by such tax
authority for the period it held such portion. The Executive and the Company
shall mutually agree upon the course of action to be pursued (and the method of
allocating the expense thereof) if the Executive's claim for refund or credit is
denied.
In the event that the Excise Tax is later determined by the Accountants (or
the Internal Revenue Service or other taxing authority) to exceed the amount
taken into account hereunder at the time the Gross-up Payment is made (including
by reason of any payment the existence or amount of which cannot be determined
at the time of the Gross-up Payment), the Company shall make an additional
Gross-up Payment in respect of such excess (plus any interest or penalties
payable with respect to such excess) at the time that the amount of such excess
is finally determined.
(d) The Gross-up Payment or portion thereof provided for in subsection (c)
above shall be paid not later than the thirtieth (30th) day following an event
occurring which subjects the Executive to the Excise Tax; provided, however,
that if the amount of such Gross-up Payment or portion thereof cannot be finally
determined on or before such day, the Company shall pay to the Executive on such
day an estimate, as determined in good faith by the Accountants, of the minimum
amount of such payments and shall pay the remainder of such payments (together
with interest at the rate provided in Section 1274(b)(2)(B) of the Code),
subject to further payments pursuant to subsection (c) hereof, as soon as the
amount thereof can reasonably be determined, but in no event later than the
ninetieth day after the occurrence of the event subjecting the Executive to the
Excise Tax. In the event that the amount of the estimated payments exceeds the
amount subsequently determined to have been due, such excess shall constitute a
loan by the Company to the Executive, payable on the fifth day after demand by
the Company (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code).
(e) In the event of any controversy with the Internal Revenue Service (or
other taxing authority) with regard to the Excise Tax, the Executive shall
permit the Company to control issues related to the Excise Tax (at its expense),
provided that such issues do not potentially materially adversely affect the
Executive, but the Executive shall control any other issues. In the event the
issues are interrelated, the Executive and the Company shall in good faith
cooperate so as not to jeopardize resolution of any such issues, but if the
parties cannot agree the Executive shall make the final determination with
regard to the issues. In the event of any conference with any taxing authority
as to the Excise Tax or associated income taxes, the Executive shall permit the
representative of the Company to accompany the Executive, and the Executive and
the Executive's representative shall cooperate with the Company and its
representative.
2
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(f) The Company shall be responsible for all charges of the Accountants.
(g) The Company and the Executive shall promptly deliver to each other
copies of any written communications, and summaries of any verbal
communications, with any taxing authority regarding the Excise Tax covered by
this Exhibit A.
3
