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Exhibit (10)(a)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
the 1st day June, 1998 between SUNDSTRAND CORPORATION, a Delaware corporation
(the "Company"), and Xxxxxx X. Xxxxxxx ("Executive").
WHEREAS, the Board of Directors of the Company (the "Board") on
September 19, 1995, elected Executive as President and Chief Executive Officer
of the Company effective October 1, 1995;
WHEREAS, the Company desires to continue the services of Executive
as its Chairman of the Board, President and Chief Executive Officer and to enter
into an agreement embodying the terms of such continuing relationship; and
WHEREAS, the Company desires to enter into this Agreement to assure
the benefits of Executive's future services to the Company, and Executive is
willing to commit to render such services, upon the terms and conditions set
forth below.
It is therefore mutually agreed as follows:
1. Employment. The Company agrees to employ Executive as Chairman
of the Board, President and Chief Executive Officer and Executive agrees to
serve the Company, upon the terms and conditions and for the period of
employment hereinafter set forth. Throughout the Employment Period (as
hereinafter defined), unless otherwise agreed in writing by Executive and the
Company, the Company shall neither demote Executive nor assign to Executive any
duties or responsibilities that are inconsistent with his position, duties,
responsibilities and status as Chairman of the Board, President and Chief
Executive Officer.
2. Employment Period. The "Employment Period" shall commence on
June 1, 1998 and, unless otherwise terminated in accordance with the provisions
of Section 7 hereof, shall terminate on September 30, 2000; provided, however,
that on September 30, 1998 and each anniversary of such date, the Employment
Period shall automatically be extended for an additional one year unless prior
thereto either party has given written notice (a "Notice of Non-Extension") to
the other that such party does not wish to extend the Employment Period.
3. Compensation. Throughout the Employment Period, the Company
shall pay or provide Executive with the following, and Executive shall accept
the same, as compensation for the performance of his undertakings and the
services to be rendered by him under this Agreement.
(a) A salary (the "Base Salary") at an annual rate which shall not
be less than the highest annual rate of salary that Executive shall theretofore
have attained but, in no event shall the Base Salary be at an annual rate less
than seven hundred thousand dollars ($700,000). The Base Salary shall be payable
in accordance with the Company's normal payroll practices applicable to its
executives but, not less frequently than bi-weekly.
(b) Participation in all executive benefit and incentive
compensation plans now maintained or hereafter established by the Company for
the purpose of providing compensation and/or benefits to executives of the
Company including, but not limited to, the Company's 1989 Restricted Stock Plan,
the Sundstrand Corporation Stock Incentive Plan, the Officer Incentive Plan, and
any supplemental retirement, salary continuation, stock option, deferred
compensation, supplemental medical and life insurance and other bonus and
incentive compensation plans. Unless otherwise provided herein, Executive's
participation in such plans shall be on the same basis and terms as other
executive officers of the Company; provided, however, that following a Change in
Control (as defined below), Executive's participation in such plans (or with
respect any stock, stock option or other equity-based benefit plan, any
substitute plans therefor) shall in no event be on a basis less favorable in
terms of benefit levels and reward opportunities applicable to Executive than
those in effect immediately prior to the Change in Control. No additional
compensation provided under any of such plans shall be deemed to modify or
otherwise affect the terms of this Agreement or any of Executive's entitlements
hereunder.
(c) Participation in all employee benefit plans, practices and
programs maintained by the Company and made available to employees generally
including, without limitation, all pension, retirement,
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savings, medical, hospitalization, disability, dental, life and travel accident
insurance benefit plans (collectively the "Benefit Plans"). Executive's
participation in the Benefit Plans shall be on the same basis and terms as are
applicable to employees of the Company generally; provided, however, that
following a Change in Control, Executive's participation in the Benefit Plans
shall in no event be on a basis less favorable in terms of benefit levels
applicable to Executive than those in effect immediately prior to the Change in
Control. In the event Executive at any time during the Employment Period is not
eligible to participate in any Benefit Plan for which Executive was previously
eligible or the Company terminates or materially amends any Benefit Plan, the
Company shall provide to Executive benefits comparable with those benefits that
would have been received by Executive if Executive continued to participate in
such Plans.
(d) Paid vacations in accordance with the Company's vacation policy
as in effect from time to time, and all paid holidays given by the Company to
its executive officers.
(e) All fringe benefits and perquisites (e.g., physical
examinations, financial planning and tax preparation services) made available by
the Company to its executive officers; provided, however, that following a
Change in Control, Executive's entitlement to such fringe benefits and
perquisites shall in no event be on a basis less favorable in terms of benefit
and perquisite levels applicable to Executive than those in effect immediately
prior to the Change in Control.
(f) Notwithstanding anything contained in this Agreement to the
contrary, in the event that any payment (within the meaning of Section
280G(b)(2) of the Internal Revenue Code of 1986, as amended, and any regulations
promulgated or proposed thereunder (the "Code")), or distribution to or for the
benefit of Executive, whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise in connection with, or
arising out of, his employment with the Company (a "Payment" or "Payments"),
would be subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties are incurred by Executive with respect to such excise tax
(such excise tax, interest and penalties collectively referred to as the "Excise
Tax"), then Executive shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by Executive of all
taxes (including any interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment, Executive retains
an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
An initial determination shall be made as to whether a Gross-Up
Payment is required pursuant to this Section 3(f) and the amount of such
Gross-Up Payment shall be made by a national independent accounting firm
selected by Executive (the "Accounting Firm"). All fees, costs and expenses
(including, but not limited to, the cost of retaining experts) of the Accounting
Firm shall be borne by the Company and the Company shall pay such fees, costs
and expenses as they become due. The Accounting Firm shall provide detailed
supporting calculations, acceptable to Executive, both to the Company and
Executive within fifteen (15) business days of the Termination Date, if
applicable, or such other time as requested by the Company or by Executive
(provided Executive reasonably believes that any of the Payments may be subject
to the Excise Tax). The Gross-Up Payment, if any, as determined pursuant to this
Section 3(f) shall be paid by the Company to Executive within five (5) business
days of the Company's receipt of the Accounting Firm's determination. The
Accounting Firm shall furnish Executive with an unqualified opinion that no
Excise Tax will be imposed with respect to any such Payment or Payments, or that
the amount of the Excise Tax due is correct. Any such initial determination by
the Accounting Firm of the Gross-Up Payment shall be binding upon the Company
and Executive subject to the application of the paragraph set forth immediately
below.
As a result of the uncertainty in the application of Section
4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a portion
thereof) will be paid which should not have been paid (an "Overpayment") or a
Gross-Up Payment (or a portion thereof) which should have been paid will not
have been paid (an "Underpayment"). An Underpayment shall be deemed to have
occurred upon notice (formal or informal) to Executive from any governmental
taxing authority that the tax liability of Executive (whether in respect of the
then current taxable year of Executive or in respect of any prior taxable year
of Executive) may be increased by reason of the imposition of the Excise Tax on
a Payment or Payments with respect to which the Company has failed to make a
sufficient Gross-Up Payment. An Overpayment shall be deemed to have occurred
upon a "Final Determination" (as hereinafter defined) that the Excise Tax shall
not be imposed upon all or any portion of any Payment or Payments with respect
to which Executive had previously received a Gross-Up Payment. A Final
Determination shall be deemed to have occurred when Executive has received from
the applicable governmental taxing authority a refund of taxes or other
reduction in his tax liability by reason of the Overpayment and upon either (i)
the date a
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determination is made by, or an agreement is entered into with, the
applicable governmental taxing authority which finally and conclusively binds
Executive and such taxing authority, or in the event that a claim is brought
before a court of competent jurisdiction, the date upon which a final
determination has been made by such court and either all appeals have been taken
and finally resolved or the time for all appeals has expired or (ii) the statute
of limitations with respect to Executive's applicable tax return has expired. If
an Underpayment occurs, Executive shall promptly notify the Company and the
Company shall pay to Executive at least five (5) business days prior to the date
on which the applicable governmental taxing authority has requested payment, an
additional Gross-Up Payment equal to the amount of the Underpayment plus any
interest and penalties imposed on the Underpayment.
Notwithstanding anything contained in this Agreement to the
contrary, in the event it is determined that an Excise Tax will be imposed on
any Payment or Payments, the Company shall pay to the applicable governmental
taxing authorities as Excise Tax withholding, the amount of the Excise Tax that
the Company has actually withheld from the Payment or Payments.
4. Expenses. During the Employment Period, the Company shall
promptly pay or reimburse Executive for all reasonable expenses incurred by
Executive in the performance of duties hereunder.
5. Conditions of Employment. Throughout the Employment Period, (a)
the Company shall not require or assign duties to Executive which would require
him to move the location of his principal business office or his principal place
of residence outside the area of Rockford, Illinois (the "Rockford Area"), (b)
the Company shall not require or assign duties to Executive which would require
him to spend more than forty-five (45) normal working days away from the
Rockford Area during any consecutive twelve-month period, (c) the Company shall
provide an office to Executive, the location and furnishings of which shall be
equivalent to the offices provided to other members of the executive office of
the Company on the date of this Agreement, and (d) the Company shall provide
secretarial services and other administrative services to Executive which shall
be equivalent to the secretarial services and other administrative services
provided to other members of the executive office of the Company on the date of
this Agreement.
6. Continuation of Benefits after Company Breach.
(a) In the event that the Company shall (i) fail to observe or
perform any covenant or agreement contained in this Agreement to be observed or
performed by the Company or (ii) give Executive a Notice of Non-Extension
pursuant to Section 2 hereof (the circumstances referred to in clauses (i) and
(ii) of this Section 6(a), whether occurring before or after a Change in
Control, are each hereinafter referred to as a "Breach"), then Executive shall
be entitled to terminate the Employment Period, and from the date of such
termination until such time as the Employment Period would otherwise have
terminated pursuant to the provisions of Section 2 or clause (ii) of Section
7(a) or until a breach by the Executive of any of the provisions of Section 8 or
9 hereof, the Executive shall continue to receive all compensation and benefits
which the Company has hereinabove in Section 3 agreed to pay to, and provide
for, Executive, in each case in the amounts and at the times provided for in
Section 3 (the "Continuation Benefits"). The parties agree that, in such event,
such payments and benefits shall be deemed to constitute liquidated damages for
the Breach. However, the Continuation Benefits shall not be payable if Executive
is, because of a Breach, entitled to receive the benefits and treatment provided
for in Section 16(b) of this Agreement, in which case those benefits and
treatment set forth in Section 16(b) of this Agreement shall be deemed to
constitute liquidated damages for the Breach. Any other provision of this
Agreement notwithstanding, before any payments or benefits are provided under
this Section 6(a) or under Section 16(b) because of a Breach, Executive shall
provide the Company with written notice of his belief that a Breach has occurred
and shall afford the Company a reasonable opportunity to cure the alleged
Breach.
(b) Notwithstanding anything contained in this Agreement to the
contrary, if the Employment Period is terminated prior to a Change in Control by
Executive pursuant to Section 6(a) hereof, and Executive reasonably demonstrates
that such Breach (l) was at the request of a third party who has indicated an
intention or taken steps reasonably calculated to effect a Change in Control or
(2) otherwise occurred in connection with or in anticipation of a Change in
Control, then for all purposes of this Agreement, the Breach shall be deemed to
have occurred after the Change in Control.
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7. Termination.
(a) Notwithstanding anything contained in this Agreement to
the contrary, the Employment Period shall immediately terminate upon the
earliest to occur of any of the following:
(i) The date of death of Executive; provided,
however, that Executive's estate, heirs and
beneficiaries shall be entitled to receive the
full amount of his salary for the month in which
death occurs and all other benefits available to
them under the Company's Benefit Plans as in
effect on the date of death of Executive;
(ii) In the event that the Company elects to terminate
the Employment Period following conviction of
Executive of a felony, the date as of which
Executive's right to file an appeal after
conviction has expired, or if Executive files an
appeal after conviction, the date as of which the
appellate court fails to reverse the conviction,
and the Company shall pay Executive his full
salary through the Termination Date (as defined
below) and the Company shall have no further
obligations to Executive under this Agreement
except with respect to any rights Executive might
otherwise have under the Company's Benefit plans
as in effect on the Termination Date;
(iii) The date as of which the Company elects to
terminate the Employment Period in accordance
with Section l0;
(iv) The Termination Date specified in a Notice of
Termination (as each term is hereinafter defined)
relating to a termination of the Employment
Period as a result of Executive's Disability. For
purposes of this Agreement, "Disability" means a
physical or mental infirmity which impairs
Executive's ability to substantially perform his
duties under this Agreement, which continues for
a period of at least one hundred and eighty (180)
consecutive days or for periods totaling at least
two hundred and forty (240) days during any
period of three hundred and sixty-five (365)
consecutive days and which, in either case,
cannot be reasonably accommodated by the Company;
(v) The Termination Date specified in a Notice of
Termination reflecting an election by the Company
to terminate the Employment Period other than for
reasons described in paragraphs (ii), (iii) or
(iv) above; or
(vi) The Termination Date specified in a Notice of
Termination reflecting an election by Executive
to terminate the Employment Period pursuant to
Section 6(a).
(b) Upon a termination of the Employment Period as a result of
Executive's Disability, Executive shall be entitled to the Continuation
Benefits. Executive shall be entitled to the compensation and benefits provided
for under this Agreement for any period during the Employment Period and prior
to the establishment of Executive's Disability during which Executive is unable
to work due to a physical or mental infirmity. Notwithstanding anything
contained in this Agreement to the contrary, until the Termination Date
specified in a Notice of Termination relating to Executive's Disability,
Executive shall be entitled to return to his position with the Company as set
forth in this Agreement in which event no Disability of Executive will be deemed
to have occurred.
(c) Upon the occurrence of and following a Change in Control,
Executive may voluntarily terminate the Employment Period at any time. If
Executive voluntarily terminates the Employment Period effective as of the first
anniversary of the effective date of a Change in Control, after having given
notice to the Company during the period which commences on the effective date of
a Change in Control and ends on the date which is eight (8) months following
such date, it shall be referred to as a "Limited Period Termination."
(d) Any termination of the Employment Period by the Company or by
Executive shall be communicated to the other party by a Notice of Termination.
For purposes of this Agreement, a "Notice of Termination" shall mean a written
notice that (i) indicates the specific termination provision in this Agreement
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relied upon, (ii) sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination under the provision so indicated and
(iii) specifies the Termination Date, the setting of which shall be subject to
the terms of Section 6(a) or Section 10 to the extent that either of those
sections shall be applicable; provided, however, that in the event of a
termination of the Employment Period by Executive pursuant to Section 7(c) other
than pursuant to a Limited Period Termination, the proposed date of termination
of the Employment Period set forth in the Notice of Termination shall not be
less than thirty (30) days nor more than sixty (60) days after the date of such
Notice of Termination. No termination of the Employment Period pursuant to
Section 6(a), any of clauses (ii), (iii), (iv) or (v) of Section 7(a) or Section
7(c) shall be effective without a Notice of Termination.
(e) Notwithstanding anything contained in this Agreement to the
contrary, if the Employment Period is terminated by the Company, or by Executive
pursuant to Section 6(a) after a Breach which the Company does not cure, in
either case, prior to the effective date of a Change in Control, and Executive
reasonably demonstrates that such termination, Breach or failure to cure a
Breach, as the case may be, (i) was at the request of a third party who has
indicated an intention or taken steps reasonably calculated to effect a Change
in Control or (ii) otherwise occurred in connection with or in anticipation of a
Change in Control, then for all purposes of this Agreement, the effective date
of the Change in Control shall be the date immediately prior to the date of such
termination of the Employment Period.
(f) For purposes of this Agreement, "Termination Date" shall mean
the date on which the Employment Period shall be terminated.
8. Covenant Not to Compete. By and in consideration of the
Company's entering into this Agreement and the Base Salary and benefits to be
provided by the Company hereunder, and further in consideration of Executive's
exposure to the proprietary information of the Company, Executive agrees that
Executive will not, from and after the date hereof until one year after
expiration of the Employment Period, directly or indirectly, own, manage,
operate, join, control, be employed by, or participate in the ownership,
management, operation or control of, or be connected in any manner, including
but not limited to, holding the position of shareholder, member, director,
officer, consultant, independent contractor, executive, partner, or investor,
with any Competing Enterprise. For purposes of this paragraph, the term
"Competing Enterprise" shall mean any business entity directly engaged (in the
United States) in the manufacture and/or sale of products competitive with any
material product or product line of the Company. For purposes of this paragraph,
the term "material product or product line of the Company" shall mean any
product or product line of the Company, the gross sales of which during any
calendar year during the five (5) year period preceding Executive's undertaking
such employment were at least $50 million. Following the Termination Date, upon
request, Executive shall notify the Company of Executive's then current
employment status. Notwithstanding anything contained in this Section 8 to the
contrary, Executive shall not be prohibited from acquiring or holding up to two
percent (2%) of the common stock of an entity that is traded on a national
securities exchange or a nationally recognized over-the-counter market.
9. Unauthorized Disclosure. Executive shall not make any
Unauthorized Disclosure. For purposes of this Agreement, "Unauthorized
Disclosure" shall mean disclosure by Executive without the consent of the Board
to any person, other than an employee of the Company or a person to whom
disclosure is reasonably necessary or appropriate in connection with the
performance by Executive of his duties as an executive of the Company or as may
be legally required, of any confidential information obtained by Executive while
in the employ of the Company (including, but not limited to, any confidential
information with respect to any of the Company's customers or methods of
distribution) the disclosure of which he knows or has reason to believe will be
materially injurious to the Company; provided, however, that such term shall not
include the use or disclosure by Executive, without the consent of the Board, of
any information known generally to the public (other than as a result of
disclosure by him in violation of this Section 9) or any information not
otherwise considered confidential by a reasonable person engaged in the same
business as that conducted by the Company.
10. Breach of Section 8 or Section 9. In the event of a breach by
Executive of the provisions of Section 8 or Section 9 of this Agreement, the
Company may terminate the Employment Period under Section 7(a)(iii), but only if
the Company complies with the following provisions:
(a) The Company shall provide Executive with written notice of its
belief that a breach of Section 8 or Section 9 of this Agreement has occurred
and shall afford Executive sixty (60) days or such longer period as the Company
may determine to cure the alleged breach.
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(b) In the event Executive does not cure the breach, the Company
shall be required to institute a judicial proceeding to determine whether a
breach of Section 8 or Section 9 of this Agreement has occurred and Executive
has not cured such breach.
(c) The Employment Period may then be terminated only upon a
judicial determination that Executive has breached the provisions of Section 8
or Section 9 and has failed to cure such breach; provided, however, that the
Employment Period may not be terminated until either all appellate proceedings
have been exhausted or the time within which Executive may appeal an adverse
ruling has expired.
11. Litigation Expenses. The Company shall pay to Executive all
out-of-pocket expenses, including attorneys' fees, incurred by Executive in
connection with any claim or legal action or proceeding brought under or
involving this Agreement, whether brought by Executive or by or on behalf of the
Company or by another party; provided, however, the Company shall not be
obligated to pay to Executive out-of-pocket expenses, including attorneys' fees,
incurred by Executive in any claim or legal action or proceeding involving (i) a
Breach; (ii) Section 8 hereof or (iii) Section 9 hereof, if the Company prevails
in such litigation.
12. Retirement Plans. Executive shall participate in the Sundstrand
Corporation Retirement Plan-Aerospace and the Sundstrand Corporation
Supplemental Retirement Plan (collectively, the "Retirement Plans"). For
purposes of determining the amount of Executive's accrued benefit under the
Retirement Plans, for the period commencing on September 19, 1995 and
terminating on the Termination Date, Executive shall be deemed to accrue "Years
of Service" and "Years of Participation" (as those terms are defined and used in
the Retirement Plans) in accordance with the Special Retirement Plan (as defined
below). The term "Special Retirement Plan" shall mean Executive's right to
accrue Years of Service and Years of Participation under the Retirement Plans at
the rate of two (2) months for each month (or fraction thereof) of actual
service. Notwithstanding the foregoing, in the event of a Change in Control,
Executive will immediately become fully-vested in a benefit payable from the
Retirement Plans, which benefit will be calculated as though, at the time of
such Change in Control, Executive had the greater of (i) twenty (20) Years of
Service and Years of Participation in the Retirement Plans and (ii) Executive's
Years of Service and Years of Participation in the Retirement Plans calculated
using Executive's service in accordance with the Special Retirement Plan.
13. Change in Control. For purposes of this Agreement, a "Change in
Control" shall mean any of the following events:
(a) The acquisition (other than from the Company) by any person (as
such term is defined in Sections 13(d) or 14(d) of the Securities Exchange Act
of 1934, as amended (the "1934 Act")) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the 0000 Xxx) of twenty-five percent
(25%) or more of the combined voting power of the Company's then outstanding
voting securities;
(b) The individuals who, as of the date hereof, are members of the
Board (the "Incumbent Board"), cease for any reason to constitute a majority of
the Board, unless the election, or nomination for election by the Company
stockholders, of any new director was approved by a vote of a majority of the
Incumbent Board, and such new director shall, for purposes of this Agreement, be
considered as a member of the Incumbent Board; or
(c) (i) A merger or consolidation involving the Company (or any
direct or indirect subsidiary of the Company) or (ii) the issuance of shares of
capital stock of the Company in connection with a merger or consolidation
involving the Company (or any direct or indirect subsidiary of the Company) if,
in the case of clause (i) or clause (ii), the stockholders of the Company
immediately before such merger or consolidation, do not, as a result of such
merger or consolidation, own, directly or indirectly, immediately following such
merger or consolidation, more than sixty-seven percent (67%) of the combined
voting power of the then outstanding voting securities of the person issuing
securities in the merger or consolidation in substantially the same proportion
as their ownership of the combined voting power of the voting securities of the
Company outstanding immediately before such merger or consolidation; provided,
however, that for purposes of clause (i) and clause (ii), voting securities of
the Company issued in connection with the merger or consolidation, including
securities to cover stock options or cure "tainted" shares (whether issued in
the merger or consolidation or pursuant to a public or private offering related
thereto), shall be treated as having been issued in such merger or consolidation
and not as having been outstanding immediately prior to such merger or
consolidation or (iii) a complete liquidation or
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dissolution of the Company or consummation of the sale or other disposition of
all or substantially all of the assets of the Company.
Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur pursuant to Section 13(a), solely because twenty-five percent
(25%) or more of the combined voting power of the Company's then outstanding
voting securities is acquired by (i) a trustee or other fiduciary holding
securities under one or more employee benefit plans maintained by the Company or
any of its subsidiaries or (ii) any corporation which, immediately prior to such
acquisition, is owned directly or indirectly by the stockholders of the Company
in the same proportion as their ownership of stock in the Company immediately
prior to such acquisition.
14. Retiree Health and Life Insurance Benefits Upon a Change in
Control. Notwithstanding anything to the contrary contained in the Company's
Benefit Plans and other applicable programs and practices, upon a Change in
Control:
(a) The eligibility requirements for the Company's Retiree Health
Insurance Plan shall be waived, and commencing on the Termination Date,
Executive shall be provided with the same health care coverage as provided to
other eligible retirees; and
(b) The age 60 and 30-year requirements of the Executive Life
Insurance Program for retirees shall be waived, and commencing on the
Termination Date, Executive shall be provided with a life insurance benefit of
(i) five (5) times the Base Salary in effect on the Termination Date for the
period commencing on the Termination Date and terminating on the third
anniversary of the Termination Date and (ii) one times such Base Salary
thereafter.
15. Stock Awards Upon a Change in Control. Upon a Change in
Control, all restrictions on any stock purchased by Executive and on any awards
(including awards to Executive of restricted stock pursuant to the Company's
1989 Restricted Stock Plan, the Sundstrand Corporation Stock Incentive Plan and
any other restricted stock plan sponsored by the Company) shall immediately
lapse and all such stock and awards shall become fully (100%) vested
immediately, and, where applicable, all shares of stock shall be immediately
deliverable to Executive; all such stock shall be freely transferable by
Executive and the Company will have no right to direct or restrict the
disposition of such stock; and all stock options and stock appreciation rights
granted to Executive shall become fully (100%) vested and shall become
immediately exercisable.
16. Other Compensation Upon Termination Following a Change in
Control. Notwithstanding the provisions of any other section of this Agreement
and in addition to any other amounts or benefits payable to Executive or on his
behalf pursuant to the terms of this Agreement (other than the Continuation
Benefits), upon termination of the Employment Period following a Change in
Control, Executive shall be entitled to the following benefits and treatment:
(a) If the Employment Period shall be terminated by Executive's
death, by the Company pursuant to any of clauses (ii) through (iv) of Section
7(a) or by Executive (other than pursuant to Section 7(c) in connection with a
Limited Period Termination or Section 6(a) following a Breach which the Company
does not cure), the Company shall pay Executive all amounts earned or accrued
hereunder through the Termination Date but not paid as of the Termination Date,
including Base Salary, vacation pay, bonuses or incentive compensation and any
previous compensation which Executive has previously deferred (including any
interest earned or credited thereon) (collectively, "Accrued Compensation"). In
addition to the foregoing, if the Employment Period is terminated by reason of
Executive's death (except if Executive had previously provided to the Company a
valid Notice of Termination in connection with a Limited Period Termination or a
Breach which the Company does not cure), the Company shall pay to Executive or
his beneficiaries an amount equal to the Bonus Amount (as defined below)
multiplied by a fraction the numerator of which is the number of days in such
fiscal year through the Termination Date and the denominator of which is 365 (a
"Pro Rata Bonus"). Executive's entitlement to any other compensation or benefits
shall be determined in accordance with the Company's employee benefit plans and
other applicable programs and practices then in effect. For purposes of this
Agreement, the term "Bonus Amount" shall mean an amount equal to the greater of
(x) the cash bonus or incentive award which would have been paid or payable to
Executive in respect of the fiscal year in which the Termination Date occurs had
Executive continued in employment until the end of such fiscal year, calculated
as if the maximum bonus or incentive award payable to Executive had been earned
for such year and (y) the greatest of (i) the highest percentage of Base Salary
used to determine Executive's cash bonus or incentive award during the Three
Year Period (as defined below) multiplied
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by the Base Salary in effect immediately prior to the Termination Date, (ii) the
highest actual cash bonus or incentive award paid or payable to Executive in
respect of any of the most recent three (3) fiscal years prior to the fiscal
year in which Executive's Termination Date occurs (such three (3) year period
referred to as the "Three Year Period"), and (iii) the product of (A) the Base
Salary paid or payable to Executive in the year of termination, (B) the highest
target bonus percentage applicable to Executive in the year of termination or
during the Three Year Period and (C) the highest Bonus to Target Ratio (as
defined below) applicable to Executive during the Three Year Period, whichever
would result in the greatest "Bonus Amount". The "Bonus to Target Ratio" for a
particular year shall mean a fraction, not less than one, the numerator of which
shall be the bonus paid or payable to Executive for such year and the
denominator of which shall be the target bonus applicable to Executive for such
year.
(b) If the Employment Period shall be terminated by the
Company other than pursuant to any of clauses (ii) through (iv) of Section 7(a)
or by Executive pursuant to Section 6(a) after a Breach which the Company does
not cure or Section 7(c) in connection with a Limited Period Termination, then
Executive shall be entitled to the benefits and treatment provided below:
(i) the Company shall pay Executive all Accrued
Compensation and a Pro Rata Bonus;
(ii) the Company shall pay Executive as severance pay
and in lieu of any further salary for periods subsequent to the Termination
Date, in a single payment (subject to Section 24 hereof) an amount in cash equal
to three (3) times the sum of (A) Executive's Base Salary (including, for
calculation purposes only, any portion thereof the receipt of which has been
deferred under any plan, program, policy or arrangement of the Company providing
for the deferral of income) and (B) the Bonus Amount. Notwithstanding the
foregoing, the amount to be paid under this Subsection (ii) shall be multiplied
by a fraction (which in no event shall be greater than one (1)) the numerator of
which shall be the number of months (for this purpose any partial month shall be
considered as a whole month) remaining until Executive's 65th birthday and the
denominator of which shall be thirty-six (36);
(iii) for a number of months equal to the lesser of (A)
thirty-six (36) or (B) the number of months remaining until Executive's 65th
birthday, the Company shall at its expense continue to provide on behalf of
Executive and his dependents and beneficiaries the fringe benefits, perquisites,
life insurance, disability, medical, dental and hospitalization, travel
accident, pension, profit sharing, savings, retirement and any other employee
benefits (other than participation in stock or other equity-based plans) which
were being provided to Executive at the time Notice of Termination or Notice of
Non-Extension, as the case may be, is given (or the benefits provided to
Executive at the time of a Change in Control, if greater). The benefits provided
in this Section 16(b)(iii) shall be no less favorable to Executive, in terms of
amounts and deductibles and costs to him, than the coverage provided Executive
under the plans providing such benefits at the time Notice of Termination or
Notice of Non-Extension, as the case may be, is given (or at the time of the
Change in Control if more favorable to Executive). The Company's obligation
hereunder with respect to the foregoing benefits shall be limited to the extent
that Executive obtains any such benefits pursuant to a subsequent employer's
benefit plans, in which case the Company may reduce the coverage of any benefits
it is required to provide Executive hereunder as long as the aggregate coverage
of the combined benefit plans is no less favorable to Executive, in terms of
amounts and deductibles and costs to him, than the coverage required to be
provided hereunder. This Subsection (iii) shall not be interpreted so as to
limit any benefits to which Executive or his dependents may be entitled under
any of the Company's employee benefit plans, programs or practices following
termination of the Employment Period, including without limitation, retiree
medical and life insurance benefits; and
(iv) the Company shall pay in a single payment (subject
to Section 24 hereof) an amount in cash equal to the greater of (x) or (y) or
(z), where (x) equals three (3) times the amount of any matching contribution
made and which would have been made on behalf of Executive to the Company's
Employee Savings Plan and Supplemental Savings Account of the Deferred
Compensation Plan for the full year in which the Termination Date occurs, using
the applicable compensation amounts as defined in Section 16(b)(ii) of this
Agreement and assuming for this purpose that the matching contribution
percentage in effect on the Termination Date shall remain the same for such
year, Executive had been employed for all of such year and Executive had
continued to make contributions for the full year based upon his election in
effect on his Termination Date, (y) equals three (3) times the amount of any
matching contribution made on behalf of Executive to the Company's Employee
Savings Plan and Supplemental Savings Account of the Deferred Compensation Plan
for the year prior to the year in which the Change in Control occurs and (z)
equals the amount of any matching contribution made
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and which would have been made on behalf of Executive to the Company's Employee
Savings Plan and Supplemental Savings Account of the Deferred Compensation Plan
for the full year in which the Termination Date occurs, using the applicable
compensation amounts as defined in Section 16(b)(ii) of this Agreement and
assuming for this purpose that the matching contribution percentage in effect on
the Termination Date shall remain the same for such year, Executive had been
employed for all of such year and Executive had continued to make contributions
for the full year based upon his election in effect on the Termination Date,
plus the amount of matching contribution which would have been made on behalf of
Executive to the Company's Employee Savings Plan and Supplemental Savings
Account of the Deferred Compensation Plan for the two (2) full years following
the year in which the Termination Date occurs, assuming that any prospective
increases in the Company matching contribution percentage approved prior to the
Change in Control were in effect, Executive had been employed for the entire
two-year period, Executive had continued to make contributions based upon his
election in effect on the Termination Date, and using the applicable
compensation amounts as defined in Section 16(b)(ii) of this Agreement.
(c) Subject to Section 24 hereof, the amounts provided for in
Sections 16(a) and 16(b)(i), (ii) and (iv) shall be paid within five (5) days
after the Termination Date.
(d) Executive's death after his having given timely Notice of
Termination in connection with a Limited Period Termination or after a Breach
which the Company does not cure, in each case after a Change in Control, shall
be treated as if Executive had terminated the Employment Period on the date of
death pursuant to Section 6(a) after a Breach which the Company does not cure.
(e) A termination of the Employment Period by the Company by reason
of Executive's Disability after his having given timely Notice of Termination in
connection with a Limited Period Termination or after a Breach which the Company
does not cure, in each case after a Change in Control, shall not affect
Executive's entitlements under this Agreement as a result of such timely Notice
of Termination in connection with such Limited Period Termination or after such
Breach which the Company does not cure, as the case may be, as if the Company
had not otherwise terminated the Employment Period by reason of Executive's
Disability.
17. No Mitigation. Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to Executive in any subsequent employment.
18. Notices. Notice given pursuant to this Agreement shall be in
writing and shall be deemed given when received and if mailed shall be mailed by
United States registered or certified mail, return receipt requested, addressee
only, postage prepaid if to the Company, to the Board of Directors of Sundstrand
Corporation, Attention: Vice President and General Counsel and Secretary of the
Company, 0000 Xxxxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxx, Xxxxxxxx 00000, or if to
Executive, at 00000 Xxxx Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or to such
other address as either party may have previously designated by notice to the
other party given in the foregoing manner.
19. Successors and Assigns.
(a) This Agreement shall be binding upon and shall inure to
the benefit of the Company, its successors and assigns and the Company shall
require any successor or assignee to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place. The
term "the Company" as used herein shall include such successors and assigns. The
term "successors and assigns" as used herein shall mean a corporation or other
entity acquiring all or substantially all the assets and business of the Company
(including this Agreement) whether by operation of law or otherwise.
(b) Neither this Agreement nor any right or interest
hereunder shall be assignable or transferable by Executive, his beneficiaries or
legal representatives, except by will or by the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
Executive's legal representative.
20. Waiver, Modification and Interpretation. No provisions of this
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in a writing signed by Executive and an appropriate
officer of the Company empowered to sign same by the Board of Directors of the
Company. No
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waiver by either party at any time of any breach by the party of, or compliance
with, any condition or provision of this Agreement to be performed by the other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same time or at any prior or subsequent time. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Illinois. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
21. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements, if
any, understandings and arrangements, oral or written, between the parties
hereto with respect to the subject matter hereof, including, but not limited to,
the Employment Agreement, dated as of September 19, 1995, between the Company
and Executive, and any and all amendments thereto. Executive acknowledges that
he has read this Agreement carefully and has consulted counsel about the
contents of this Agreement prior to the execution hereof.
22. Gender, Tense and Headings. Whenever any words are used herein
in the masculine gender, they shall be construed as though they were also used
in the feminine gender in all cases where they would so apply. Whenever any
words used herein are in the singular form, they shall be construed as though
they were also used in the plural form in all cases where they would so apply.
The headings contained herein are solely for purposes of
reference, are not part of this Agreement and shall not in any way affect the
meaning or interpretation of this Agreement.
23. Rabbi Trust. Immediately prior to a Change in Control, the
Company shall deposit into a "rabbi trust," solely for the benefit of Executive,
which meets the requirements of Rev. Proc. 92-64, 1992-2 C.B. 422, and the terms
of which are reasonably acceptable to Executive, an amount of cash sufficient
(as determined by the Company in good faith, subject to the approval of
Executive, which approval shall not unreasonably be withheld) to fund the
anticipated payments and benefits under this Agreement, but in no event shall
such amount be less than that amount which would be required to be deposited by
assuming that Executive will terminate the Employment Period due to a Limited
Period Termination on the first anniversary of the effective date of the Change
in Control.
24. Deferral. The Company shall provide Executive the opportunity
to defer the receipt of any amounts payable under Section 16(a), 16(b)(i), (ii)
and (v) hereunder and under the Retirement Plans to such date or dates as are
reasonably chosen by Executive, such deferred amounts to appreciate at an annual
rate equal to one hundred and thirty percent (130%) of the Xxxxx Average (as
defined below) for such year, pursuant to an election to so defer made by
Executive no later than one year prior to the date such payments would otherwise
be due or such shorter period as the Company and Executive shall reasonably
agree upon. In the event that Executive shall make an election to defer receipt
of any amount due under Section 16(a), 16(b)(i), (ii) and (iv) hereunder or
under the Retirement Plans, on the Termination Date the Company shall deposit
into a "rabbi trust" which meets the requirements of Rev. Proc. 92-64, 1992-2
C.B. 422, solely for the benefit of Executive, and the terms of which are
reasonably acceptable to Executive, an amount equal to one hundred and ten
percent (110%) of the amount so deferred. "Xxxxx Average" shall mean the average
rate under the Xxxxx'x Long Term Corporate Bond Yield Averages for the 12-month
period ending on the last business day in September of the Company's fiscal year
preceding the year in which such rate shall be used. On each anniversary of the
initial funding of such trust, the Company shall deposit cash into the trust in
an amount sufficient so that, as of such anniversary, the value of the assets of
the trust are not less than the obligations of the Company to Executive under
this Agreement.
25. Indemnification. During the Employment Period and thereafter,
the Company shall indemnify Executive to the fullest extent permitted by law
against any judgments, fines, amounts paid in settlement and reasonable expenses
(including attorneys' fees), and advance amounts necessary to pay the foregoing
at the earliest time and to the fullest extent permitted by law, in connection
with any claim, action or proceeding (whether civil or criminal) against
Executive as a result of Executive serving as an officer or director of the
Company or in any capacity at the request of the Company, in or with regard to
any other entity, employee benefit plan or enterprise (other than arising out of
Executive's acts of willful misconduct, misappropriation of funds or fraud).
This indemnification shall be in addition to, and not in lieu of, any other
indemnification Executive shall be entitled to pursuant to the Company's
Certificate of Incorporation or By-Laws or otherwise. Following the Termination
Date, the Company shall continue to cover Executive under the Company's
directors and officers insurance for the period during which Executive may be
subject to potential liability for any claim, action or proceeding (whether
civil or
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criminal) as a result of his service as an officer or director of the Company or
in any capacity at the request of the Company, in or with regard to any other
entity, employee benefit plan or enterprise (other than arising out of
Executive's acts of willful misconduct, misappropriation of funds or fraud) at
the highest level then maintained for any then or former officer or director,
and if the Termination Date shall occur following a Change in Control, in no
event shall such coverage be on a basis less favorable in terms of coverage
applicable to Executive than that in effect immediately prior to the Change in
Control.
26. Headings. The headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first written above.
SUNDSTRAND CORPORATION
By: /s/ Xxxx Xxx Xxxxx By: /s/ Xxxxxx Xxxxxxxxx
---------------------------- ----------------------------------
Xxxx Xxx Xxxxx Xxxxxx Xxxxxxxxx
Vice President and Chairman, Compensation
General Counsel and Committee of the Sundstrand
Secretary` Corporation Board of Directors
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Executive
